Comcare v SDCS

Case [2023] FCA 1509

FEDERAL COURT OF AUSTRALIA

Comcare v SDCS [2023] FCA 1509

Appeal from: SDCS v Comcare [2022] AATA 1327
File number: QUD 217 of 2022
Judgment of: THOMAS J
Date of judgment: 1 December 2023
Catchwords: WORKERS’ COMPENSATION – appeal from decision of the Administrative Appeals Tribunal (Tribunal) – whether Tribunal erred in finding that SDCS had suffered an “injury” within the meaning of the Safety Rehabilitation and Compensation Act (the Act) as early as August 2016 – whether the Tribunal erred in finding that SDCS’ “symptoms onset” in August 2016 was not the result of reasonable administrative action – where legal test for injury incorrectly applied or reasons insufficiently exposed – where Tribunal failed to deal with submission put by Comcare – where findings unsupported by probative evidence – error of law demonstrated – appeal upheld
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases cited:

Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262

Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43

Comcare v Mooi (1996) 69 FCR 439

Comcare v Moon (2003) 75 ALD 160; [2003] FCA 569

Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13

De Tarle v Comcare (2022) 178 ALD 339; [2022] FCA 175

Dranchnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] FCA 26

Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410; [2010] FCAFC 94

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666

O’Donnell v K & S Freighters Pty Ltd (2015) 66 AAR 370; [2015] FCA 573

Prain v Comcare (2017) 256 FCR 65; [2017] FCAFC 143

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

Rodriguez v Telstra Corporation Ltd (2002) 66 ALD 579; [2002] FCA 30

Stateships v Lawson (2009) 107 ALD 42; [2009] FCA 59
Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 94
Date of hearing: 28 April 2023
Counsel for the Applicant: Mr C Clark
Solicitor for the Applicant: Sparke Helmore
Counsel for the Respondent: The Respondent appeared with a support person

ORDERS

QUD 217 of 2022
BETWEEN:

COMCARE

Applicant
AND:

SDCS

Respondent

ORDER MADE BY:

THOMAS J

DATE OF ORDER:

1 DECEMBER 2023

THE COURT ORDERS THAT:

1.The appeal be allowed and the decision of 20 May 2022 be set aside.

2.Pursuant to ss 44(4) and 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law.

3.The respondent pay the applicant’s costs, to be taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THOMAS J:

OVERVIEW

  1. This is an appeal by the…

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AGLC
Comcare v SDCS [2023] FCA 1509
Case
[2023] FCA 1509
Decision Date

CaseChat Overview and Summary

The case of Comcare v SDCS involved an appeal from a decision of the Administrative Appeals Tribunal (AAT) concerning whether SDCS had suffered an injury within the meaning of the Safety Rehabilitation and Compensation Act 1988 (Cth) as early as August 2016. The appeal centred on whether the AAT erred in its findings regarding the timing of SDCS's injury and whether it correctly applied the legal tests in doing so. Comcare, the appellant, argued that the AAT had misapplied the legal tests, failed to consider evidence pointing to an injury on 10 November 2017, and made findings unsupported by probative evidence.

The legal issues before the court were primarily whether the AAT had correctly applied the statutory tests for determining the date of injury and whether its findings were adequately supported by evidence. Comcare contended that the AAT erred by not applying the correct legal tests for determining when an injury occurred and by failing to consider evidence that suggested an injury on 10 November 2017. Comcare further argued that the AAT’s finding regarding the date of injury was not supported by probative evidence and was contrary to medical evidence.

The court found that the AAT had indeed erred in several respects. The AAT’s decision that SDCS had suffered an injury in August 2016 was not supported by relevant probative evidence and did not address the statutory requirements regarding incapacity for work or impairment. Additionally, the AAT failed to consider evidence indicating an injury on 10 November 2017 and did not properly address the submissions made by Comcare regarding reasonable administrative action. The AAT also breached procedural fairness by not advising Comcare of its provisional opinion and inviting submissions on this matter. Furthermore, the AAT’s reasons for finding that the injury in August 2016 was not due to reasonable administrative action were insufficient.

As a result of these findings, the court allowed the appeal, set aside the AAT’s decision, and remitted the matter back to the AAT for reconsideration. The respondent was ordered to pay the applicant’s costs, to be taxed if not agreed.

Orders

Orders of the court

1. The appeal be allowed and the decision of 20 May 2022 be set aside.

2. Pursuant to ss 44(4) and 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth), the matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law.

3. The respondent pay the applicant’s costs, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Comcare’s submissions alleged essentially three forms of error in the Tribunal’s finding as to injury:(a)that the Tribunal failed to apply the correct legal tests in determining “injury” under the SRC Act;(b)that the Tribunal failed to have regard to the evidence which pointed to the respondent having suffered an injury on 10 November 2017; and(c)that the Tribunal’s finding regarding the date of the respondent’s injury was unsupported by probative evidence and/or contrary to the medical evidence.To a large extent, each of these alleged errors is closely related.Evidence as to injury Before the Tribunal and this Court, Comcare identified the respondent’s psychiatric condition as a “disease” under s 5A of the SRC Act – that is, an ailment or aggravation of an ailment within the meaning of s 5B(1). The Tribunal appeared to accept this in its reasons and the respondent did not challenge this characterisation on appeal. At the conclusion of the hearing before the Tribunal, there were two competing positions regarding when the respondent’s condition might have qualified as a “disease” under the SRC Act:(a)Comcare’s position: that on 10 November 2017, the respondent developed a temporary exacerbation of his pre-existing adjustment disorder following the disciplinary action at his employment; and (b)the respondent’s position: that in August 2016, he developed the adjustment disorder following exposure to aggressive customers. In its written closing submissions before the Tribunal, Comcare submitted that s 5B(1) required the respondent to point to “evidence which establishes that his employment – more specifically the exposure to aggressive customers – has ‘contributed to a significant degree’ to the development of any psychiatric condition”. This, it was said:involves a two-fold process. Initially, the [respondent] must be able to point to factual evidence which shows that he suffered mental health symptoms on account of exposure to aggressive customers. The second stage involves expert medical evidence which confirms that this alleged exposure has in fact resulted in a psychiatric condition and that the level of contribution of that factor reaches the threshold of “contributed to a significant degree”. Later in its written submissions, Comcare further submitted that:36.[Section 14] mandates that not only must a claimant show that he has suffered an injury (as that term encompasses a “disease”), but that such an injury “results in death, incapacity for work or impairment”.37.Here, the evidence establishes that [the respondent] did not have any incapacity for work until after the meeting with [his supervisor] on the 10th November 2017 and thereafter visited his general practitioner. In support of its position, Comcare principally relied upon expert evidence from Dr Murphy, a psychiatrist. He examined the respondent in December 2017 and April 2019, and produced four reports between 28 December 2017 and 15 October 2020.

Decision

Reasons for decision

Comcare relied on four related grounds of appeal, as follows:1.In finding that the Respondent experienced a “symptom onset” in August 2016, the Tribunal necessarily found that the Respondent had suffered an injury within the meaning of s.14 of the Act at that time. That finding was:(1)Not supported by relevant probative evidence;(2)Did not address the elements of s.14, more particularly whether any injury so caused “results in…incapacity for work, or impairment”; (3)Did not identify any incidents of the Respondent’s employment which were causative of the “injury” in August 2016.2.The finding that there was no evidence that the Respondent’s injury in August 2016 was a result of “reasonable counselling action whether formal or informal taken in respect of the Respondent’s employment” was not supported by probative evidence. More particularly:(1) The Tribunal’s reasons do not refer to any evidence to support this finding;(2) There was ample evidence that such informal counselling was taking place in August 2016: more specifically:(a) 13 July 2016 - feedback session summary at ST 9, page 29;(b) 13 August 2016 - feedback summary session at T 3.3, pages 95-96;(c) This phase of the counselling was the subject of extensive cross examination of the Respondent at Day 2 Transcripts pp 82-102.3.Breach of procedural fairness: Before the Tribunal, both the Respondent and the Applicant conducted their respective cases by reference to what occurred on 10 November 2017. On that day, the Respondent had left work and soon thereafter was certified as unfit for work on account of suffering “mixed anxiety and depression”. The Respondent conducted his case on the basis that he was suffering that condition on account of dealing with aggressive customers in the course of his work. For the Applicant, it was asserted that the Respondent’s mental health symptoms arose as a result of extensive informal counselling which commenced as early as 19 July 2017. In these circumstances, it was a breach of procedural fairness for the Tribunal to not advise the Applicant of this provisional opinion and invite submissions in respect of this provisional opinion. This breach of procedural fairness is further compounded in that by remitting the matter back to the Applicant for reconsideration with a finding that the “reasonable administrative action” exclusion does not apply, the Applicant is thereby impermissibly constrained in investigating what is in effect a new claim and considering evidence which is to the contrary.4.The Tribunal has not provided any reasons in support of its finding that in respect of the Respondent’s injury in 2016, that there was no evidence that this injury was the result of “reasonable counselling action (whether formal or informal)” and hence the reasonable administrative action exclusion did not apply. In these circumstances, in light of the evidence and the submissions by the Applicant, this lack of reasons is not in conformity with the requirements of s.43 of the Administrative Appeals Tribunal Act.(underlining in original)The Tribunal’s decision

Ratio Decidendi

Legal Principle Established

The upshot of this decision, as confirmed by the Full Court in Comcare v Wuth (2018) 260 FCR 89; [2018] FCAFC 13 (Perry J, with whom Siopis J agreed), is that legal error may be found if the Tribunal bases a conclusion upon its own views in circumstances where the matter required expert evidence.Consideration Comcare’s submissions alleged essentially three forms of error in the Tribunal’s finding as to injury:(a)that the Tribunal failed to apply the correct legal tests in determining “injury” under the SRC Act;(b)that the Tribunal failed to have regard to the evidence which pointed to the respondent having suffered an injury on 10 November 2017; and(c)that the Tribunal’s finding regarding the date of the respondent’s injury was unsupported by probative evidence and/or contrary to the medical evidence.To a large extent, each of these alleged errors is closely related.Evidence as to injury Before the Tribunal and this Court, Comcare identified the respondent’s psychiatric condition as a “disease” under s 5A of the SRC Act – that is, an ailment or aggravation of an ailment within the meaning of s 5B(1). The Tribunal appeared to accept this in its reasons and the respondent did not challenge this characterisation on appeal. At the conclusion of the hearing before the Tribunal, there were two competing positions regarding when the respondent’s condition might have qualified as a “disease” under the SRC Act:(a)Comcare’s position: that on 10 November 2017, the respondent developed a temporary exacerbation of his pre-existing adjustment disorder following the disciplinary action at his employment; and (b)the respondent’s position: that in August 2016, he developed the adjustment disorder following exposure to aggressive customers. In its written closing submissions before the Tribunal, Comcare submitted that s 5B(1) required the respondent to point to “evidence which establishes that his employment – more specifically the exposure to aggressive customers – has ‘contributed to a significant degree’ to the development of any psychiatric condition”. This, it was said:involves a two-fold process. Initially, the [respondent] must be able to point to factual evidence which shows that he suffered mental health symptoms on account of exposure to aggressive customers. The second stage involves expert medical evidence which confirms that this alleged exposure has in fact resulted in a psychiatric condition and that the level of contribution of that factor reaches the threshold of “contributed to a significant degree”. Later in its written submissions, Comcare further submitted that:36.[Section 14] mandates that not only must a claimant show that he has suffered an injury (as that term encompasses a “disease”), but that such an injury “results in death, incapacity for work or impairment”.37.Here, the evidence establishes that [the respondent] did not have any incapacity for work until after the meeting with [his supervisor] on the 10th November 2017 and thereafter visited his general practitioner.