Comcare Australia v McGuire, Alexander Kyle - [1996] FCA 683

C A T C H W O R D S

COMMONWEALTH EMPLOYEES' COMPENSATION - ear infection during swimming training in the course of army service in 1951 - infection caused perforation of ear drum - perforation destroyed most of hearing in that ear - claim made under Safety Rehabilitation & Compensation Act 1988 - application of transitional provisions - claim for lump sum for permanent impairment - whether compensation "was payable in respect of that injury" under the Commonwealth Employees' Compensation Act 1930 ("the 1930 Act") - the 1930 Act provided for lump sum compensation for hearing loss sustained by accident arising out of or in the course of employment - whether personal injury by accident arising out of or in the course of respondent's employment - or whether "disease" - whether entitlement arose independently of such considerations simply by application of s.12 and Third Schedule of 1930 Act - admissibility of claim - failure to give notice and make claim within time - excuses for - mistake or other reasonable cause - ignorance of rights - soldier in army - applicant under impression that soldiers did not enjoy same workers' compensation rights as other Commonwealth employees - mistake of law - mistake as to legal status - whether, having found mistake and reasonable cause, Tribunal obliged to consider possible prejudice to employer.

Safety Rehabilitation & Compensation Act 1988 (Cth) ss.4(1), 14(1), 24(1), 25, 123A, 124(1), 124(1A), 124(2), 124(3), 124(4), 124(10)
Commonwealth Employees' Compensation Act 1930 (Cth) ss.9(1), 10, 12, 16(1), 16(4)

The Commonwealth v. Hornsby (1960) 103 CLR 588
Favelle Mort Ltd v. Murray (1976) 133 CLR 580
Wilson v. Wilson's Tile Works Pty Ltd (1960) 104 CLR 328
Johnston v. The Commonwealth (1982) 150 CLR 331
Bird v. The Commonwealth (1988) 165 CLR 1
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481
Brennan v. Comcare (1994) 50 FCR 555
Schlenert v. Australian and Overseas Telecommunications Corporation (1994) 49 FCR 139
Delahunty v. The Commonwealth (1981) 53 FLR 9
Miles v. Northern Territory Fire Services (1989) 17 ALD 185
The Commonwealth v. Connors (1989) 10 AAR 395

Banks v. Comcare Australia (unreported Kiefel J, 22 May 1996, Judgment No. 382 of 1996)
Brintons Ltd v. Turvey [1905] AC 230
Miller v. J.W. Handley Pty Ltd (1948) 2 WCD (Vict.) 134
Comcare v. Miles (1995) 129 ALR 427

COMCARE AUSTRALIA v. ALEXANDER KYLE McGUIRE
No. WAG 147 of 1995

CARR J
PERTH
7 AUGUST 1996

IN THE FEDERAL COURT            )
OF AUSTRALIA  )
WESTERN AUSTRALIA                )
DISTRICT REGISTRY  )  No. WAG 147 of 1995
GENERAL DIVISION  )

B E T W E E N : COMCARE AUSTRALIA

Applicant
and
ALEXANDER KYLE McGUIRE

Respondent

CORAM:      CARR J.
PLACE:        PERTH
DATE:           7 AUGUST 1996

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The appeal be dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE…

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.

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Details

Case: [1996] FCA 683
Decision Date: 7 AUGUST 1996

CaseChat Overview and Summary

Comcare Australia sought to appeal the decision of the Administrative Appeals Tribunal (AAT) which set aside a decision made by Comcare's delegate, that the respondent, Alexander Kyle McGuire, was not liable to pay compensation for the hearing loss he sustained during his service in the Army in 1951. The AAT found that McGuire suffered a chronic middle ear infection and a patent perforation of his left ear drum arising out of his employment in the Army during the period from 31 July 1951 to 30 July 1957. The Tribunal remitted the matter to Comcare for reconsideration of McGuire's entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) on the basis of the Tribunal's findings. Comcare raised four grounds of appeal. The court found that the Tribunal did not make any errors of law and dismissed the appeal. The court found that the Tribunal had sufficient evidence to find that McGuire's ear infection and perforation of the ear drum arose out of his employment. The court also found that the Tribunal was not required to consider prejudice to Comcare when deciding whether McGuire's failure to give notice and claim compensation within time was due to mistake, ignorance or other reasonable cause. The court found that the Tribunal was entitled to find that McGuire's failure to give notice and claim compensation was occasioned by mistake. The court found that the Tribunal was not required to find the date upon which McGuire's deafness became a permanent impairment.

Orders