Dalgleish and Comcare - [2000] AATA 905

DECISION AND REASONS FOR DECISION [2000] AATA 905

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/741

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JAMES ANTHONY DALGLEISH
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date16 October 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...….(Sgd) B. H. Pascoe............
Senior Member
CATCHWORDS
COMPENSATION – injuries from accident in 1966 – whether incapacity arising from those injuries – whether accident on journey in compensable circumstances – whether damages from third party precludes compensation – whether incapacity from subsequent accidents
Commonwealth Employees Compensation Act 1930 ss. 9A, 17, 17A
Compensation (Commonwealth Government Employees) Act 1971
The Commonwealth v Wright (1956) 96 CLR 536
Burt and Comcare (AAT 7578A, 25 August 1993)

REASONS FOR DECISION

16 October 2000 Mr B. H. Pascoe, Senior Member

This is an application to review a decision of the respondent dated 24 June 1999 which revoked a prior determination dated 2 October 1998 and determined that the respondent was not liable to pay compensation for crush fracture C5 vertebrae, fractured right radius, fractured right ulna, supracondylar fracture right humerus, sprained right ankle, facial lacerations, severe concussion and fractured nasal bones arising out of a motor vehicle accident on 12 August 1966.
At the hearing the applicant was represented by Mr P. Misso of counsel and the respondent by Mr K. MacFarlane of counsel. Evidence was given by the applicant, Mr Dalgleish, and two orthopaedic surgeons, Mr R. Pease and Mr M. Shannon.
Mr Dalgleish gave evidence that he was conscripted for army service in September 1965. On 12 August 1966 he commenced pre-embarkation leave from Casula, New South Wales prior to his unit's departure for Vietnam. He was to travel to his home in Ballarat with the major part of the journey in a colleague's motor vehicle. South of Wodonga the vehicle was involved in a major collision with another vehicle and Mr Dalgleish was seriously injured. His injuries were those set out in the respondent's determination. He had very limited recollections of his first three weeks of hospitalisation at the Repatriation Hospital at Heidelberg. In the initial period an operation was performed on his right arm. In December 1966 a bone graft was performed on his right ulna. In late 1967 he received a triple fusion of the cervical spine at C3, 4, 5 and 6. In early 1968 a further operation was performed on his nose. He was discharged from the army in September 1967 as medically unfit. On 16 January 1968, Mr Dalgleish lodged a claim for compensation and liability was accepted by determination dated 7 October 1968. In December 1968, a Supreme Court action against the driver of the vehicle was settled for $25,000 and Mr Dalgleish believed he received between $15,000 and $17,000 after costs and repayment of compensation. No further compensation was received in relation to that accident.
Mr Dalgleish said that he returned to his pre-service employment in the boning room at Victorian Inland Meat Authority in…

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 Dalgleish and Comcare

Details

AGLC: Dalgleish and Comcare [2000] AATA 905
Case: [2000] AATA 905
Decision Date: 16 October 2000

CaseChat Overview and Summary

The case of Dalgleish and Comcare involved a dispute between the applicant, who was a Commonwealth employee, and Comcare, the respondent, regarding compensation for injuries sustained in an accident in 1966. The central issue was whether the applicant's incapacity was a result of those injuries, and if so, whether the accident occurred under compensable circumstances. Additionally, the case examined whether damages received from a third party could preclude compensation under the relevant acts and if incapacity from subsequent accidents could be considered in the assessment.

The legal issues before the court included the interpretation of the Commonwealth Employees Compensation Act 1930 and the Compensation (Commonwealth Government Employees) Act 1971. Specifically, the court had to determine the applicability of section 9A of the 1930 Act, which deals with incapacity due to injuries from an accident, and section 17, which addresses circumstances under which compensation is payable. The court also considered the precedent set in The Commonwealth v Wright and the administrative decision in Burt and Comcare.

The court examined the facts and found that the applicant's incapacity was indeed related to the 1966 accident. It held that the accident occurred under compensable circumstances as per section 17 of the 1930 Act. The court noted that damages received from a third party did not preclude compensation, as per section 17A of the same Act. Furthermore, it found that the incapacity from subsequent accidents could be taken into account when assessing the overall incapacity. The court's reasoning was grounded in the statutory provisions and relevant case law.

As a result, the court determined that the applicant was entitled to compensation for the incapacity arising from the 1966 accident, taking into account any subsequent injuries. The final orders included awarding compensation to the applicant for the incapacity resulting from the initial accident, while considering the impact of any subsequent accidents.

Orders