Comcare v Calipari

[2001] FCA 1534

Comcare v Calipari [2001] FCA 1534

Comcare v Calipari [2001] FCA 1534

COMCARE v FRANK CALIPARI

A26 of 2001

FINN J

CANBERRA

8 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A26 OF 2001

BETWEEN:	COMCARE APPLICANT
AND:	FRANK CALIPARI RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	8 NOVEMBER 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.       The application be allowed.

2.       The decision of the Administrative Appeals Tribunal dated 27 April 2001 be set aside.

3.       The matter be remitted to a differently constituted Tribunal to be heard and determined again.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A26 OF 2001
BETWEEN:	COMCARE APPLICANT
AND:	FRANK CALIPARI RESPONDENT

JUDGE:	FINN J
DATE:	8 NOVEMBER 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1 This is a regrettable proceeding. The respondent, Frank Calipari, has in effect conceded - and rightly so - that the Administrative Appeals Tribunal ("the Tribunal") committed an error of law in applying the provisions of s 14(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") to the circumstances giving rise to his claim under that Act for compensation for a workplace-related injury. The only real issue between the parties is whether, notwithstanding the error made, only one result could have been reached by the Tribunal so that a remitter of it to the Tribunal would be futile.

The Error of Law

2 Section 14(1) of the SRC Act creates a liability in Comcare to pay compensation to employees to who the Act applies in respect of injuries suffered which result in death, incapacity for work, or impairment. Section 14(3) limits that liability in the following way:

"Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."

3       Provisions of this type employing the "serious and wilful misconduct" formula have a long history in workers' compensation legislation: see eg Johnson v Marshall, Sons & Co Ltd [1906] AC 409. For present purposes I would note that the word "serious" in the formula describes the misconduct in question and not the actual consequences of it. Nonetheless, because the s 14(3) disentitlement arises where the injury is caused by the misconduct it is well accepted that the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury: see Johnson v Marshall, Sons & Co Ltd, at 416.

4       On occasion judicial and scholarly exegesis of the formula has applied the term "serious" not only to the misconduct in question but also to the injury the risk of which is created or increased by the misconduct. So in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases…