Cooke and Comcare

[2011] AATA 194

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 194

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2005/1423

GENERAL ADMINISTRATIVE DIVISION		)
Re		Marion Cooke

Applicant

And Comcare

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Dr John Campbell

Date24 March 2011

PlaceSydney

Decision The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate Ms Cooke for the injury she suffered.

...................[sgd]...........................

Senior Member

CATCHWORDS

COMPENSATION – claim of harassment by other employees – whether applicant had a psychological or psychiatric condition – whether condition was an injury or disease – whether incidents complained of were employment – whether employment aggravated condition – decision under review set aside

Safety, Rehabilitation and Compensation Act 1988, s 14

Dunstan v Comcare (2006) 93 LD 390

Federal Broom Co Pty Ltd v Semitch (1964) 110 CLR 626 at 632-633

Westgate v Australian Telecommunications Commission (1998) 17 FCR 235

Comcare v Etheridge (2006) 90 ALD 31

Zickar v MGH Plastics (1996) 187 CLR 310

Kennedy Cleaning v Petkoska 200 CLR 286

Comcare v Sahu-Khan (2007) 156 FCR 536

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

REASONS FOR DECISION

24 March 2011	Senior Member Jill Toohey Dr John Campbell
Background

1.      Marion Cooke has worked for the Australian Customs Service as a customs officer at Sydney airport since July 2001.  She is 45 years old.  She claims she was harassed by fellow workers in December 2004 and January 2005.  She seeks review of a decision denying liability to compensate her for injury resulting from that conduct.

2.      On 22 February 2005, Ms Cooke lodged a claim for compensation for “adjustment disorder with depressed and anxious mood”.  Comcare rejected her claim.  Ms Cooke sought review of that decision and the matter was heard in this tribunal over several days in 2007 and 2008.  On 8 October 2008, the Tribunal, differently constituted, affirmed Comcare’s decision.

3.      Ms Cooke lodged an appeal against the Tribunal’s decision in Federal Court.  The matter comes before the Tribunal again by way of a consent remittal from the Federal Court. 

The issues

4. We have to determine whether Ms Cooke is entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).   In the circumstances of her case, that requires us to determine:

(i)whether Ms Cooke suffered a psychological or psychiatric condition prior to December 2004, or after;

(ii)if so, whether that condition was a mental injury or a disease;

(iii)whether the incidents complained of occurred and, if so, whether they were employment for the purposes of the Act;

(iv)if Ms Cooke had a mental injury, whether it arose out of or in the course of, or was aggravated by, her employment;

(v)if she had a disease, whether her employment contributed to, or aggravated, it to a material degree.

5.      The Act was amended on 12 April 2007.  As Ms Cooke lodged…