Comcare Australia v Silver - [2004] FCA 701

FEDERAL COURT OF AUSTRALIA
Comcare Australia v Silver [2004] FCA 701
WORKERS’ COMPENSATION – Commonwealth employee – liability for permanent impairment – injury to eye – progressive decline in visual acuity – whether decline attributable to new permanent impairment or not – whether in assessing the degree of impairment regard should be had to one or both eyes
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Comcare v Maida (2002) 36 AAR 69 applied
Comcare Australia v Mathieson [2004] FCA 212 cited
Comcare v Amorebieta (1996) 66 FCR 83 cited
Comcare v Ticsay (1992) 38 FCR 181 cited
Thiele v Commonwealth (1990) 22 FCR 342 cited
Whittaker v Comcare (1998) 86 FCR 532 cited
COMCARE AUSTRALIA v GRAHAM GEORGE SILVER
No S 22 of 2004
FINN J
ADELAIDE
3 JUNE 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 22 OF 2004

BETWEEN:

COMCARE AUSTRALIA
APPLICANT

AND:

GRAHAM GEORGE SILVER
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

3 JUNE 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1. The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 22 OF 2004

BETWEEN:

COMCARE AUSTRALIA
APPLICANT

AND:

GRAHAM GEORGE SILVER
RESPONDENT

JUDGE:

FINN J

DATE:

3 JUNE 2004

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

The principal issue in this appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) is a narrow one. In 1971 the respondent, Graham Silver, suffered a work related injury to his left eye that produced scarring on his retina. Comcare accepted liability for that injury on 14 December 2000. By the time Mr Silver sought permanent impairment compensation for that injury he was suffering a 75 per cent loss of left eye vision. Ophthalmological evidence showed a progressive deterioration in visual loss and a progressive decline in visual acuity from 1981 (10 per cent and 90 per cent) to the Tribunal hearing in 2002 (75 per cent and 20 per cent). The short question raised was whether this decline was all attributable to the same permanent impairment or whether it was attributable to a new permanent impairment.
A NEW PERMANENT IMPAIRMENT
The reason this issue assumed importance is that the relevant compensation legislation at the time of the original injury was the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”). The Act in force at the time of Mr Silver’s compensation claim was the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) which, for all relevant purposes, came into effect on 1 December 1988. The transitional provisions of the 1988 Act were such that, if the permanent impairment of which Mr Silver now complains occurred before 1 December 1988, the compensation payable in respect of that impairment under the 1988 Act was to be the same as that which was payable under the 1971…

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 Comcare Australia v Silver

Details

AGLC: Comcare Australia v Silver [2004] FCA 701
Case: [2004] FCA 701
Decision Date: 3 JUNE 2004

CaseChat Overview and Summary

Comcare Australia was sued by Mr Silver under the provisions of the 1988 Act, seeking compensation for an injury sustained in 1971 during his service in the Australian Regular Army. The injury, caused by a flash grenade explosion, affected his left eye but did not immediately impair his vision. Years later, a separate injury to his right eye led to a recommendation to consult an eye specialist, which eventually led to his compensation claim. The dispute centred on the location of the retinal scarring and its progression, leading to his progressive decline in visual acuity. The primary issue before the court was whether Mr Silver’s visual impairment was attributable to the flash grenade injury or other factors.

The court examined the medical evidence and differing opinions regarding the initial location of the scarring and its impact on Mr Silver’s vision. Dr Lane posited that the scar, initially off-centre from the macula, had evolved to involve it over time, leading to his current state of legal blindness. Dr Crompton, however, argued that the scarring had matured and progressed to involve the favea, wiping out his central vision. The court had to determine whether the visual impairment was due to the initial injury or other factors. The court noted that the scarring was unlikely to account for the significant visual impairment observed.

In its judgment, the court found that the scarring had indeed progressed and impacted the macula, leading to the visual impairment. The court concluded that the initial injury was the primary cause of the visual impairment, dismissing Comcare’s argument that other factors were responsible. The court held that Comcare was liable for the compensation claim under the 1988 Act. The application was dismissed with costs awarded to Comcare.

Orders

Orders of the court

1. The application be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FINN J

Under the 1988 Act, Comcare is required to pay compensation for an injury for which it is liable: cf s 14(1) of the Act; if that injury results in a permanent impairment: s 24(1). The terms “impairment” and “permanent” are defined in s 4 of the Act to mean, respectively: (i)“the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;” and(ii)“likely to continue indefinitely.”Factual Setting and the Tribunal’s Decision Mr Silver’s left eye injury resulted from the explosion of a practice “flash” grenade while he was engaged in field training for the Australian Regular Army on 9 December 1971. Apart from a short period after sustaining the injury, he suffered no noticeable loss of vision at the time. Ten years later he suffered a separate injury to his right eye which was not work related and which, on his evidence, did not affect his left eye. In 2000 when having his glasses replaced, he was recommended to see Dr Lane, an eye specialist. That led to his making his compensation claim on Comcare. The medical evidence and the divergences within it fell within a small compass. For present purposes the matter of contention related to the initial location of scarring to Mr Silver’s retina occasioned by the explosion and to the ongoing significance of that scarring in causing his progressive decline in visual acuity. The differences in medical opinion are captured in the following two extracts from the Tribunal’s reasons:“37.Dr Lane gave evidence that there has been a quantitative change, in that the applicant’s measured visual acuity has changed. He said also that the quality of the applicant’s vision is distinctly worse than it was. It has gone from 5 percent to legally blind – a qualitative change. He said in evidence that he understood that physiological change is really a change in some part of the body’s function that occurs normally. Patho-physiological change implies that there is some disorder or disease present. He said he considered that in the applicant’s case, the scar was slightly off centre initially from that part of the retina that we call the macula, which is responsible for the very sharp detailed central vision. Over time the scar has progressed to involve the macula, either by growing over it, or pulling traction on it. He said that scar tissue often shrinks over time, and can put traction on things, as it can actually extend an area. In his view, the scar tissue has evolved, so as to encroach on the macula. He can find no evidence of any other disorder in the eye, apart from very mild corneal scarring which has been documented at the time of the initial injury in 1971. That scarring is still only very mild, and certainly could not account for a vision of less than 6/60 [which is regarded as legal blindness]. …40.Dr Crompton said in evidence that in his opinion, the applicant suffered an ‘injury’ to the macula in the 1971 blast injury that produced scarring, and now with aging, and maturation of the scar, it has progressed and involved the favea which is the centre of the macula, and that has wiped out his central vision. The burns he suffered caused no significant visual disability at all. If his visual acuity was as asserted by Comcare, 6/18 in 1985, and if there was no other cause, then it would be due to a macula scar – an expected natural progression. He is now legally blind, in his left eye, and that is not correctible.” Emphasis added.

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 22 OF 2004

BETWEEN:	COMCARE AUSTRALIA APPLICANT
AND:	GRAHAM GEORGE SILVER RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	3 JUNE 2004
WHERE MADE:	ADELAIDE

JUDGE:	FINN J
DATE:	3 JUNE 2004
PLACE:	ADELAIDE