Chambers and Comcare (Compensation) - [2016] AATA 615

Chambers and Comcare (Compensation) [2016] AATA 615 (18 August 2016)

Division

GENERAL DIVISION

File Number

2015/1110

Re

John Chambers

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey
Senior Member A Poljak

Date 18 August 2016

Place Sydney
The Tribunal sets aside the decision under review and instead decides that Comcare is liable to compensate Mr Chambers for his psychological condition and his epilepsy.

..................[sgd]......................................................
Senior Member J F Toohey
CATCHWORDS
COMPENSATION – adjustment disorder with depression and anxiety – epilepsy – stress – whether employment contributed to significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review set aside and substituted

LEGISLATION
Safety Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14
REASONS FOR DECISION
Senior Member J F Toohey
Senior Member A Poljak
18 August 2016
Background

Mr John Chambers was admitted to legal practice in 1984 and has been employed in the Corporate Affairs Commission, the New South Wales Royal Commission into the Building Industry, the New South Wales Crime Commission and the Federal Office of the Employment Advocate.
From August 1999, Mr Chambers was employed by the Australian Securities and Investment Commission (ASIC). He has not been employed since 6 June 2014 when he took a voluntary redundancy.
On 9 September 2014, Mr Chambers lodged a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for “epileptic and non-epileptic seizures, anxiety and depression and fatigue”. He attributed his conditions to “sustained tension” from his involvement in protracted litigation conducted by ASIC and “unjustifiable and inappropriate pressure” from senior managers regarding his team members’ performance and his own “alleged poor assessment and demotion”.
Mr Chambers claims that the anxiety, stress and pressure associated with his work for ASIC was exacerbated by the conduct of his managers, Mr Christopher Savundra and Mr George Stogdale, and another officer.
It is not in dispute that Mr Chambers’ employment with ASIC contributed to a significant degree to his psychological condition. Comcare contends, however, that Mr Chambers has not suffered a compensable injury within the meaning of the SRC Act because his condition was the result of reasonable administrative action taken in a reasonable manner in respect of his employment.
It is not in dispute that Mr Chambers suffered an onset of epilepsy in late 2013 which led to his admission to hospital in November 2013. Comcare contends, however, that his employment did not contribute to a significant degree to his condition. For convenience, we will refer to this as Mr Chambers’ neurological condition.
Legislation
By s 14 of the SRC Act, Comcare is liable to compensate an employee for an injury that results in incapacity, impairment or death.
By s 5A(1), injury in the SRC Act means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an…

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 Chambers and Comcare (Compensation)

Details

AGLC: Chambers and Comcare (Compensation) [2016] AATA 615
Case: [2016] AATA 615
Decision Date: 18 August 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr Chambers against a decision by Comcare. The dispute centred on whether Mr Chambers' employment contributed to a significant degree to his adjustment disorder with depression and anxiety, and his epilepsy, and whether any administrative actions taken by his employer constituted reasonable administrative action taken in a reasonable manner, thereby excluding Comcare's liability. The decision was made by J F Toohey SM.

The primary legal issues before the court were whether Mr Chambers' psychological condition and epilepsy were caused or contributed to by his employment, and crucially, whether the actions taken by his employer in relation to his employment were reasonable administrative actions taken in a reasonable manner. The court was required to determine if these actions, if they did contribute to his conditions, would operate to exclude Comcare's liability to compensate Mr Chambers.

The court found that, even assuming the transfer of Mr Chambers could be characterised as administrative action, it was not satisfied that such action was reasonable or taken in a reasonable manner. Consequently, the court concluded that liability for Mr Chambers' psychological condition was not excluded. Furthermore, the court was satisfied that his employment contributed to a significant degree to his epilepsy, and to the extent that epilepsy resulted from the employer's actions, liability was also not excluded. Accordingly, the decision under review was set aside, and Comcare was found liable to compensate Mr Chambers for both his psychological condition and his epilepsy.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all the circumstances, and assuming that the decision to transfer Mr Chambers can properly be characterised as administrative action for the purposes of the SRC Act, we are not satisfied that it was reasonable administrative action or that it was taken in a reasonable manner. Conclusion We are satisfied that liability for Mr Chambers’ psychological condition is not excluded by reason of it resulting from reasonable administrative action taken in a reasonable manner in respect of his employment. We are satisfied that his employment contributed to a significant degree to his epilepsy. To the extent, if at all, that his epilepsy was the result of those actions, liability for his injury is not excluded. For these reasons we set aside the decision under review and decide instead that Comcare is liable to compensate Mr Chambers for his psychological condition and his epilepsy.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2015/1110
Re	John Chambers
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J F Toohey Senior Member A Poljak
Date	18 August 2016
Place	Sydney