Comcare v Campbell - [1999] FCA 1367

FEDERAL COURT OF AUSTRALIA
Secretary of the Department of Defence as a Delegate of Comcare v Campbell [1999] FCA 1367
SECRETARY OF THE DEPARTMENT OF DEFENCE AS A DELEGATE OF COMCARE v IAN ROBERT CAMPBELL
N 561 OF 1999
EINFELD J
28 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 561 OF 1999

BETWEEN:

SECRETARY OF THE DEPARTMENT OF DEFENCE AS A DELEGATE OF COMCARE
Applicant

AND:

IAN ROBERT CAMPBELL
Respondent

JUDGE:

EINFELD J

DATE:

28 SEPTEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The Secretary of the Department of Defence, acting as a delegate of Comcare, appeals from a decision of the general administrative division of the Administrative Appeals Tribunal, given on 14 May 1999 reversing a decision of Comcare that further compensation was not payable to the respondent, Ian Robert Campbell, in respect of injuries involving both his knees said to have occurred in the course of his employment in the Army on 17 July 1984. The facts of the matter are adequately set out in the reasons for decision of the Tribunal and there is no point in detailing them again. There has been no dispute raised in relation to those findings nor a suggestion that the Tribunal has made some error in its enunciation of the facts. In brief, what actually happened was that Mr Campbell first injured his right knee at work. The resulting disability then caused him to put extra weight on the left knee and as a consequence he developed similar symptoms in the left knee to those he already had in the right knee. In setting aside the decision under review, the Tribunal substituted its own findings which are set out in paragraphs 2(a) to 2(e) of its decision. They need no repetition here.
The Secretary has raised three matters in the decision of the Tribunal which are said to manifest areas of law. The first is that in making its decision the Tribunal misinterpreted table 9.5 of what is called the "Guide to the Assessment of the Degree of Permanent Impairment" which receives statutory force by reason of section 24 (5) of the Safety Rehabilitation and Compensation Act 1988 (the Act) with effect on and from 1 December that year. That subsection provides that Comcare is to determine the degree of permanent impairment of an employee resulting from a compensable injury under the provisions of the guide. “Impairment” is defined in section 4 of the Act as "the loss, the loss of the use, or the damage or malfunction, of any part of the body…" and some other matters not now relevant. “Injury” is defined as, inter alia, "an injury suffered by an employee arising out of, or in the course of, the employee's employment or an aggravation thereof". These are traditional definitions that have appeared in compensation legislation for many decades. Following those definitions and using the guide, the Tribunal determined the disability in respect of each separate leg under table 9.5 as 20…

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 v Campbell

Details

AGLC: Comcare v Campbell [1999] FCA 1367
Case: [1999] FCA 1367
Decision Date: 28 SEPTEMBER 1999

CaseChat Overview and Summary

Comcare, acting through the Secretary of the Department of Defence, appealed against a decision of the Administrative Appeals Tribunal (AAT) which reversed a decision of Comcare that further compensation was not payable to Ian Robert Campbell for injuries to both knees sustained during his employment with the Army. The appeal focused on three key issues: the interpretation of a table in the Guide to the Assessment of the Degree of Permanent Impairment, the calculation of deterioration in Mr Campbell's condition since the implementation of the 1988 legislation, and the adequacy of the AAT's reasons regarding the osteoarthritis condition.

The court found that the AAT did not misinterpret the guide when it assessed the impairment of each of Mr Campbell's legs separately and then calculated the total impairment using another table. The court held that the guide was intended to facilitate the calculation of disability and compensation, and that the AAT's approach was consistent with the statutory definitions of "injury" and "permanent impairment." Regarding the second issue, the court rejected the Secretary's argument that the AAT erred in calculating the deterioration in Mr Campbell's condition. The court held that the AAT's method of working backwards from the current impairment to determine the impairment in 1988 was permissible, and that the Secretary's argument was purely semantic. Finally, the court found that the AAT provided sufficient reasons for its findings on the osteoarthritis condition, and that it was not necessary for the AAT to explain in detail the reasons for accepting or rejecting certain medical opinions.

The appeal was dismissed with costs. The court certified that the preceding thirteen numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Marcus Einfeld.

Orders