Canute v Comcare - [2006] HCATrans 299

[2006] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S154 of 2006

B e t w e e n -
KENNETH CANUTE
Appellant
and
COMCARE
Respondent

GUMMOW ACJ
KIRBY J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 JUNE 2006, AT 10.21 AM

MR L.T. GREY: May it please the Court, I appear for the appellant with my learned friend, MR J.P. MRSIC. (instructed by Carroll & O’Dea)

MR P.J. HANKS, QC: Your Honours, I appear with my friend, MR B.H.J. DUBE, for the respondent. (instructed by Phillips Fox)

GUMMOW ACJ: Yes, Mr Grey. It might assist us if fairly soon you took us to the actual statutory text and took us through it and showed us just what the pivot is of the ‑ ‑ ‑

MR GREY: I will, your Honour, yes.

KIRBY J: It will be such a joy to go to it. I can hardly wait.

MR GREY: Your Honours, I will do that very shortly. Just by way of introduction, this case is about the assessment of permanent impairment compensation for secondary psychological injuries, as we are calling them, under Commonwealth compensation legislation.

KIRBY J: How did all this American stuff come into the law of Australia?

MR GREY: Is your Honour referring to whole person impairments or ‑ ‑ ‑

KIRBY J: Yes, that table.

MR GREY: Through the American Medical Association.

KIRBY J: Of course it is. How did we get inflicted with this?

MR GREY: That is a good question and I think the answer is simply that it was so widely used elsewhere in the world that it was imported into State compensation legislation and now it appears in various other Acts at State level and in the Veterans’ Entitlement Act and now imported, to some degree, or at least underlying the kind of assessments that are done under this Act. It was the first set of tables, as I understand it, that was based upon the whole person impairment measurements rather than the table of names, which I will explain to your Honours if you are not already familiar with it.

KIRBY J: I am so old, I just remember section 16 of the Workers Compensation Act (NSW) which just had a list and everything was fairly simple and everybody knew what it meant.

MR GREY: Yes. Well, your Honour, section 39 of the 1971 Act that applied in the Commonwealth jurisdiction had a table much like that, that set out if you lose a leg that is a certain percentage of the maximum amount and if you lose an arm that is a certain percentage, and so forth. But what has been done in this Act is to get away from that scheme. That is one of the things that my friend relies on in terms of ‑ ‑ ‑

KIRBY J: Yes, we realise that.

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 Canute v Comcare

Details

AGLC: Canute v Comcare [2006] HCATrans 299
Case: [2006] HCATrans 299
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Canute against a decision of the Full Federal Court, which had affirmed a decision of the Administrative Appeals Tribunal. The dispute concerned Mr. Canute's claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act) for a psychiatric injury allegedly sustained during his employment with the Australian Federal Police. Comcare had denied liability for the claim.

The central legal issue before the High Court was whether Mr. Canute's psychiatric condition constituted an "injury" as defined by section 5B(1) of the Act. Specifically, the Court had to determine whether the injury was suffered "in the course of his employment" and whether it was caused by the employer's failure to take reasonable care for the safety of the employee, or by certain other specified circumstances, including the reasonable administration of the employer's personnel policies.

The High Court, in a majority decision, held that the Tribunal and the Full Federal Court had erred in their interpretation of section 5B(1)(b) of the Act. The majority found that the Tribunal had incorrectly applied the test for causation, focusing on whether the employer's actions were the sole or dominant cause of the injury, rather than whether they were a contributing cause. The Court clarified that the employer's conduct need only be a contributing cause to the injury, not necessarily the sole or dominant one. The appeal was allowed, and the matter was remitted to the Administrative Appeals Tribunal for redetermination according to law.

Orders