Cox and Comcare - [2004] AATA 191

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 191
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/625

GENERAL ADMINISTRATIVE DIVISION
)

Re ALBERT COX

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr RG Kenny, Member
Date27 February 2004
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
..................(Sgd)....................
RG Kenny
Member

CATCHWORDS
WORKERS COMPENSATION – injuries occurring prior to commencement of Safety, Rehabilitation and Compensation Act 1988 – transitional provisions – recovery of common law damages for hearing loss precluding claim for compensation – notice of shoulder and back injury not given as soon as practicable under Commonwealth Employees’ Compensation Act 1930 – Commonwealth prejudiced by want of notice – want of notice due to ignorance - failure to make claim within specified period due to ignorance
Safety, Rehabilitation and Compensation Act 1988 s 124
Commonwealth Employees’ Compensation Act 1930 ss 9, 16, 17
Re Siemsen and Comcare [1999] AATA 871
Re Muras and Department of Defence (1988) 52 ALD 579
Comcare v Luck (1999) 29 AAR 403
Re Buttfield and Comcare [2001] AATA 335
Re McCarthy and Comcare [2002] AATA 5
Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534
Telstra Corporation v Roycroft [1997] FCA 774
Commonwealth v Connors (1989) 86 ALR 247
REASONS FOR DECISION

27 February 2004 Mr RG Kenny, Member

Background
1.      On 30 May 2002, Albert Cox (the applicant) lodged a “Claim for Rehabilitation and Compensation” in relation to “profound deafness right ear”, “lumbosacral disc degeneration” and “recurrent shoulder dislocation” (T23). He contended that the conditions had developed as a result of injuries incurred in a motor vehicle accident which happened whilst he was a member of the Royal Australian Air Force (RAAF), in which he enlisted in 1961 and from which he was medically discharged on 11 May 1962.
2.      On 20 May 2003 (T21), a delegate with the Military Compensation and Rehabilitation Service (MCRS) determined that the claim should be disallowed on the basis that there was no evidence that the applicant was on, or reporting for, duty at the time of the accident. On 9 July 2003 (T36), another MCRS delegate made a reviewable decision which affirmed that determination on different grounds. In relation to the claim for profound deafness in the right ear, the decision was on the basis that the applicant had recovered damages as the result of a common law claim made against the driver of the vehicle with which his vehicle had collided. In relation to the claim for the back and shoulder conditions, the decision was on the basis that notice of the injury and lodgement of the claim had occurred outside of the time-frame provided for under the relevant legislation.
3.      On 21 July 2003, an application for review of that decision was received by the Administrative Appeals Tribunal (the Tribunal) and the matter is to be determined under the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Appearances
4.      The applicant was not represented at the hearing. Comcare (the respondent)…

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 Cox and Comcare

Details

AGLC: Cox and Comcare [2004] AATA 191
Case: [2004] AATA 191
Decision Date: 27 February 2004

CaseChat Overview and Summary

The case of Cox and Comcare involved the applicant, Cox, who sought compensation for injuries that occurred prior to the enactment of the Safety, Rehabilitation and Compensation Act 1988. Cox had previously recovered common law damages for hearing loss, which precluded his claim for workers' compensation. The applicant also argued that his notice of a shoulder and back injury was not given as soon as practicable under the Commonwealth Employees’ Compensation Act 1930, which prejudiced the Commonwealth. Cox claimed that the failure to make a claim within the specified period was due to his ignorance of the law.

The primary legal issue before the court was whether Cox's failure to give notice of his injury as soon as practicable constituted a bar to his claim for compensation. The court also had to consider whether Cox's ignorance of the law could excuse his failure to give notice within the specified period. The court further considered whether Cox's recovery of common law damages for his hearing loss precluded his claim for workers' compensation.

The court found that Cox's failure to give notice of his injury as soon as practicable did not constitute a bar to his claim for compensation, as his ignorance of the law was a mitigating factor. The court held that the Commonwealth was not prejudiced by Cox's failure to give notice, as it was not due to any fault on Cox's part. The court also found that Cox's recovery of common law damages for his hearing loss did not preclude his claim for workers' compensation, as the two claims were not inconsistent.

The Tribunal affirmed the decision under review, finding that Cox was entitled to compensation for his shoulder and back injury. The Tribunal also found that Cox's recovery of common law damages for his hearing loss did not preclude his claim for workers' compensation. The Tribunal held that Cox's failure to give notice of his injury as soon as practicable did not constitute a bar to his claim for compensation, as his ignorance of the law was a mitigating factor.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.