Comcare v Line

Case [2002] FCAFC 321

FEDERAL COURT OF AUSTRALIA

Comcare v Line [2002] FCAFC 321

COMPENSATION – government employee – “suitable employment” – requirement that employee “did not subsequently terminate that employment” does not mean “whose employment was terminated” – “employment by the Commonwealth” does not mean “employment of the nature concerned with the Commonwealth”

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 4(1), 4(9), 8, 14(1), 19, 19(2), 19(3), 19(3)(a), 19(3)(b), 19(3)(f), 19(4), 19(4)(b) – (g), 21A, 40(1)
Safety, Rehabilitation and Compensation Amendment Act 2001 (Cth)

Comcare v Chenhall (1996) 69 FCR 201 approved
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 referred to
Telstra Corporation Ltd v Warner (1994) 20 AAR 249 referred to
Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015 referred to

COMCARE v TRACY LEAH LINE
W154 of 2002

FRENCH, LEE and RD NICHOLSON JJ
24 OCTOBER 2002
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY

W154 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

COMCARE
APPELLANT

AND:

TRACY LEAH LINE
RESPONDENT

JUDGE:

FRENCH, LEE and RD NICHOLSON JJ

DATE OF ORDER:

24 OCTOBER 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The appellant be given leave to add a ground of appeal to the effect that the Court erred in failing to set aside par 1(b)(i) of the decision of the Tribunal and to remit the calculation of the normal weekly earnings of the respondent for the period referred to therein in accordance with the law.

2.Order 1 of Carr J made on 2 May 2002 be deleted and in lieu thereof the following order substituted:

“Paragraph 1(b)(i) and (ii) of the decision of the Administrative Appeals Tribunal, made on 10 May 2001, be set aside”.

3.The matter of the amount of compensation which the respondent is liable to pay, pursuant to s 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to the appellant for each of the first 45 weeks immediately after 17 September 1995 be remitted to the Tribunal for decision in accordance with the law.

4.The appeal otherwise be dismissed.

5.The appellant pay the respondent’s cost of the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W154 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

COMCARE
APPELLANT

AND:

TRACEY LEAH LINE
RESPONDENT

JUDGE:

FRENCH, LEE and RD NICHOLSON JJ

DATE:

24 OCTOBER 2002

PLACE:

PERTH

REASONS FOR JUDGMENT

FRENCH AND LEE JJ:

  1. We agree with the orders proposed by Nicholson J for the reasons he has given.

    I certify that the preceding one

    (1) numbered paragraph is a true

    copy of the Reasons for Judgment
    of the Honourable Justice French
    and Justice Lee.

    Associate:
    Dated:


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY

W154 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:

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Comcare v Line [2002] FCAFC 321
Case
[2002] FCAFC 321
Decision Date

CaseChat Overview and Summary

Comcare v Line involves a dispute concerning the interpretation of the term "suitable employment" in section 4 of the Safety Rehabilitation & Compensation Act 1988 (Cth). The appeal was brought by Comcare against Line, who had been discharged from the Royal Australian Air Force (RAAF) due to medical unfitness caused by physical and mental impairments. These impairments stemmed from stress fractures and somatoform disorder she developed during her service. Line sought compensation under the Act, and the Administrative Appeals Tribunal (Tribunal) found her entitled to it. Comcare appealed the Tribunal’s decision, focusing on how the Tribunal calculated the compensation amount, particularly regarding the definition of "suitable employment" and the rate of weekly payments.

The primary legal issue the court had to address was the interpretation of the definition of "suitable employment" in section 4(1) of the Act and its application in calculating the rate of weekly compensation payments. The court needed to determine whether the Tribunal correctly applied the definition when it found that Line was not capable of earning any amount in "suitable employment" after her discharge from the RAAF. This interpretation was crucial because it affected the calculation of her incapacity payments under sections 19(2) and 19(3) of the Act.

The court examined the definition of "suitable employment" and its application in the context of Line's circumstances. It found that the Tribunal had erred in its interpretation of "suitable employment" by not considering the specific provisions of section 4(1)(a) of the Act. The court held that "suitable employment" should have been assessed with reference to the matters listed in subparagraphs (i) to (iv) of paragraph (a). Given that no such employment had been available to Line since her discharge, the court concluded that her incapacity payments should be calculated without regard to any amount she could earn in employment. Consequently, the court set aside the Tribunal's decision regarding the calculation of Line’s normal weekly earnings for the first 45 weeks of her incapacity and remitted the matter back to the Tribunal for re-assessment in accordance with the law.

The court dismissed the appeal in all other respects and ordered Comcare to pay Line’s costs of the appeal. This decision underscores the importance of correctly interpreting statutory definitions in compensation claims and highlights the need for tribunals to carefully consider all relevant statutory provisions when making their determinations.

Orders

Orders of the court

1. The appellant be given leave to add a ground of appeal to the effect that the Court erred in failing to set aside par 1(b)(i) of the decision of the Tribunal and to remit the calculation of the normal weekly earnings of the respondent for the period referred to therein in accordance with the law.

2. Order 1 of Carr J made on 2 May 2002 be deleted and in lieu thereof the following order substituted:

“Paragraph 1(b)(i) and (ii) of the decision of the Administrative Appeals Tribunal, made on 10 May 2001, be set aside”.

3. The matter of the amount of compensation which the respondent is liable to pay, pursuant to s 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to the appellant for each of the first 45 weeks immediately after 17 September 1995 be remitted to the Tribunal for decision in accordance with the law.

4. The appeal otherwise be dismissed.

5. The appellant pay the respondent’s cost of the appeal.

Background

Background to the litigation

This appeal raises an issue of construction concerning par (a) of the definition of “suitable employment” in s 4 of the Safety Rehabilitation & Compensation Act 1988 (Cth) (“the Act”). The issue arises on an appeal against orders of the primary judge which had the effect of dismissing the bulk of the appellant’s appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 May 2001. The issue of construction relates to certain provisions of the Act which govern the rate of weekly compensation payments the calculation of which involves application of the definition of “suitable employment”. Background circumstances The background circumstances were set out in the reasons for judgment of the primary judge (Carr J) from which the following is derived. The respondent was born on 27 August 1974. On 10 August 1992 she enlisted in the Royal Australian Airforce (“RAAF”). Her first duties were to take part in what is known as “recruit training”. After approximately seven weeks of that training the respondent developed shin pain. She was diagnosed as suffering from stress fractures. She also began to experience severe headaches and dramatic mood swings. Her duties were then restricted. On 21 July 1993 right and left shin fasciotomies were performed on the respondent under general anaesthetic. However, her symptoms continued. Although her duties in the RAAF were of a clerical nature in the accounts department, she had considerable difficulty managing that work. On 17 September 1995 the respondent was discharged from the RAAF. The ground of her discharge was that she was medically unfit for further service by reason of her physical and mental impairment. These were described respectively as “bilateral fasciotomies” and “somatoform disorder”. The respondent made considerable efforts to obtain new employment. In November 1995 she secured employment in a card shop for a few weeks. She worked as a clerk at Edith Cowan University from 9 April 1996 to 20 June 1997. On 6 July 1994 the respondent lodged a claim for compensation with the Department of Defence. The appellant accepted liability to pay compensation to her pursuant to the Act in respect of injuries described as “stress fracture left and right tibiae, left fibula and bilateral compartment syndrome and somatoform disorder”. Later the appellant accepted liability to pay to the respondent lump sum compensation for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the Act in respect of her “lower legs condition” on the basis that she had suffered a “whole person impairment” of 20 percent as a result of the compensible injury to her legs. On 18 June 1998 a delegate of the appellant made a determination assessing the amount of compensation payable to the respondent by way of incapacity (ie weekly) payments pursuant to s 19 of the Act. The determination was that the total amount of such compensation payable to the respondent for the period from 18 September 1995 to 24 June 1998 was $16,977.52 (gross) and that thereafter the amount of such compensation payable to the respondent per week was $19.80 (gross). This calculation was based on the delegate’s assessment that the amount which the respondent was then able to earn in “suitable employment” was $477.37 per week.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The foundation of the liability of the appellant is derivative from s 14(1) of the Act which provides:“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”Tribunal’s decision The principal evidence before the Tribunal was medical evidence. On the basis of that evidence the Tribunal found that during her period of service in the RAAF the respondent suffered physical ailments in the form of stress fracture of the left and right tibiae and of the left fibula and anterior and posterior compartment syndrome in both legs. It also found that during that period she suffered a mental ailment, namely somatoform disorder or anxiety/depressive disorder. Additionally, the Tribunal found the respondent had continued to suffer a physical ailment manifested in the form of chronic pain in both legs and the mental ailment previously referred to. In relation to both the physical and psychiatric/psychological ailments found to have been sustained by the respondent the Tribunal found these had been “contributed to in a material degree” by her employment with the Commonwealth in the RAAF. It held that each of the conditions was a “disease” and also constituted an “injury” within the meaning of those definitions in s 4(1) of the Act. It further found that as a result of each of those conditions she suffered and continued to suffer an incapacity to engage in work at the same level at which she was engaged by the Commonwealth in that work or in any other work immediately before the injury happened: see 4(9)(b) of the Act. The Tribunal therefore accordingly found the respondent was incapacitated for work as a result of an injury and was entitled to compensation pursuant to s 19 of the Act. Then the Tribunal reasoned that because the respondent’s employment was terminated by the Commonwealth and not by her, par (a) of the definition of “suitable employment” in s 4(1) of the Act applied. Consequently “suitable employment” for the purposes of calculating her incapacity payments under s 19 of the Act meant “employment by the Commonwealth … in work for which [the respondent] is suited having regard to” the matters listed in subpars (i) to (iv) of par (a). Because no such “suitable employment” had been available to the respondent since her discharge from the RAAF on 17 September 1995 she had not been “able to earn” any amount in “suitable employment” for the purposes of the application of s 19(2) and (3) of the Act. It followed therefore in the reasoning of the Tribunal that her incapacity payments were to be calculated under those provisions without regard to any amount of money that the respondent had earned or was capable of earning in employment. The effect of the Tribunal’s decision was that the compensation payable to the respondent was payable in three periods, namely:(1)100% of Ms Lines “normal weekly earnings” for the first 45 weeks of her incapacity – in accordance with s 19(2) of the Act;(2)100% of Ms Lines “normal weekly earnings” for each week after the end of that period until 20 June 1997, during which time Ms Line was employed for 100% of her “normal weekly hours” – in accordance with s 19(3)(f) of the Act;(3)75% of Ms Lines “normal weekly earning” for each week after 20 June 1997 – in accordance with s 19(3)(a) of the Act.

Ratio Decidendi

Legal Principle Established

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