Comcare v Ross - [1996] FCA 680

CATCHWORDS

ADMINISTRATIVE LAW - Safety Rehabilitation and Compensation legislation - meaning of 'injury' - 'injury' excludes that suffered 'as a result of a failure to obtain a benefit' in connection with employment - whether failure to obtain a benefit includes failure to retain - construction considered but not decided.

Safety, Rehabilitation and Compensation Act 1988, s4

ADMINISTRATIVE LAW - Appeal from AAT - majority finding that injury occurred other than as a result of failure to obtain a benefit - causation - finding open as one fact - no error of law.

Agfa-Gevaert Ltd v Collector of Customs (1994) 124 ALR 645

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

COMCARE v MICHAEL JOHN ROSS
No ACT G21 of 1996

FINN J
CANBERRA
2 AUGUST 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No. ACT G 21 of 1996   DISTRICT REGISTRY               )
  )
GENERAL DIVISION                 )

BETWEEN: COMCARE

Applicant

AND: MICHAEL JOHN ROSS

Respondent

COURT: FINN J

PLACE: CANBERRA

DATE: 2 AUGUST 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The appeal 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 )
  )
AUSTRALIAN CAPITAL TERRITORY     )
  )    No. ACT G 21 of 1996   DISTRICT REGISTRY               )
  )
GENERAL DIVISION                 )

BETWEEN: COMCARE

Applicant

AND: MICHAEL JOHN ROSS

Respondent

COURT: FINN J
PLACE: CANBERRA
DATE: 2 AUGUST 1996

REASONS FOR JUDGMENT

This appeal from the Administrative Appeals Tribunal ("the Tribunal") under the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), s44 (1) is of narrow compass. On 23 February 1996 the Tribunal, by a majority, set aside a reviewable decision of Comcare of 16 December 1994 and remitted the matter to Comcare with the direction that Mr Ross was entitled to receive compensation payment for the period 25 January 1994 to 23 February 1994.

Though the grounds of appeal to this Court challenged the Tribunal's finding that the condition from which Mr Ross suffered and for which compensation was claimed was within the s4 definition of "disease" in the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"), the appeal itself was limited to the single issue of whether in the events which transpired Mr Ross had no compensable claim because he fell within the proviso to the SRC Act, s4's definition of "injury". That definition for present purposes excludes from the compensation regime of the Act "any disease [or] injury ... suffered by an employee as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with his ... employment".

For reasons which I will give below, the question of law Comcare so seeks to agitate does not actually arise in the circumstances of this case.

Factual Background

This can be mentioned briefly. In 1990 Mr…

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 Ross

Details

AGLC: Comcare v Ross [1996] FCA 680
Case: [1996] FCA 680
Decision Date: 2 AUGUST 1996

CaseChat Overview and Summary

In Comcare v Ross, the Federal Court of Australia was called upon to determine whether Michael John Ross was entitled to compensation for an injury sustained while employed as a bus driver with ACTION. The central issue revolved around the interpretation of the term "injury" under the Safety, Rehabilitation and Compensation Act 1988, specifically whether Ross's condition was caused by a failure to obtain a benefit in connection with his employment. The appeal to the Court was from a decision of the Administrative Appeals Tribunal, which had remitted the matter to Comcare, finding Ross was entitled to compensation.

The legal issue before the Court was whether the Tribunal erred in finding that Ross's injury was not the result of a failure to obtain a benefit. Comcare argued that Ross's failure to accept a transfer to an administrative/courier position resulted in his inability to retain certain benefits under his original industrial award, thereby falling within the exclusion in the Act's definition of "injury." Ross, on the other hand, contended that the injury was a result of the conflict between him, his union, and ACTION management over the redeployment, rather than his failure to obtain a benefit.

Justice Finn concluded that the Tribunal's finding on the cause of Ross's injury was a matter of fact and not open to challenge on this appeal. The majority of the Tribunal had found that Ross's injury resulted from the conflict, which involved his union and ACTION management, and not from his failure to obtain a benefit. This finding was supported by the evidence and was reasonable on the facts presented. Justice Finn further noted that it was open to the Tribunal to conclude that Ross's injury resulted from the conflict itself, rather than the failure to secure the objective sought by the union. Given this finding, the appeal by Comcare did not succeed as the issue they sought to raise did not actually arise in the circumstances of the case.

Justice Finn also briefly addressed the interpretation of the term "obtain" within the proviso to the definition of "injury," noting that it was a question of fact for the Tribunal. He refrained from delving deeply into the interpretation of the proviso, as the appeal was limited to questions of law and the particular facts of the case did not fully expose the possible limits of the proviso's reach.

The Court ultimately dismissed the appeal and ordered that the appeal be dismissed with costs.

Orders