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FORD and COMCARE (Compensation)

FORD and COMCARE (Compensation)

Case [2018] AATA 648 21 March 2018

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FORD and COMCARE (Compensation) [2018] AATA 648 (21 March 2018)

Division:General Division
File Number: 2016/5154
Re:MATHEW FORD
APPLICANT

AndCOMCARE
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:21 March 2018
Place:Melbourne

The Tribunal affirms the reviewable decision of the respondent dated 27 July 2016 refusing to accept liability under the Safety, Rehabilitation and Compensation Act 1988.

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

Deputy President S A Forgie

COMPENSATION – injury sustained by employee while ascending steps during travel to work – steps used by general public to gain access to concourse between Spencer Street Station and Etihad Stadium – injury did not arise out of, or in the course of, employment – reviewable decision affirmed

STATUTORY INTERPRETATION – Explanatory Memorandum cannot be used to contradict clear words of statute

PRACTICE AND PROCEDURE – principle of comity – no application in Tribunal proceedings

LEGISLATION

Acts Interpretation Act 1901 (Cth), s 15AB(1)

Commonwealth Employees’ Compensation Act 1930 (Cth) ss 9, 9A

Defence Act 1903 (Cth) s 45(1)

Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 6, 14

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) ss 2, 3, 6

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011 (Cth) ss 2, 3, 6

Veterans’ Entitlements Act 1986 (Cth) s 70(1)

Workers Compensation Act 1987 (NSW)

Workers’ Compensation Act 1926 (NSW)

CASES

Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Bull v Attorney-General for New South Wales (1913) 17 CLR 370
Comcare v Mather and Mitchell [1995] FCA 1216; (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; 141 ALR 618

Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529

Drakev Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577;

2 ALD 60 at 419; 589
Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Foster v Edwin Penfold & Co Limited 27 BWCC 240

Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Grech v Commonwealth of Australia 1 DCR (NSW) 108
Gregory v Comcare (1997) 72 FCR 196
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611

Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281

John Stewart and Son Ltd v Longhurst 10 BWCC 266
Learmonth v H&A Bag Company [1944] WCR 131
McCullum v Northumbrian Shipping Company…

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 FORD and COMCARE (Compensation)

Details

AGLC: FORD and COMCARE (Compensation) [2018] AATA 648
Case: [2018] AATA 648
Decision Date: 21 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Ford against a decision of the Administrative Appeals Tribunal (AAT) which had affirmed a determination by Comcare. Mr Ford sought compensation for a psychological injury allegedly sustained during his employment with the Australian Federal Police. The core of the dispute revolved around whether Mr Ford's condition was a 'disease' for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act), and if so, whether it was contributed to by his employment.

The Federal Court was required to determine whether the AAT erred in law by failing to properly consider the evidence relating to the onset and progression of Mr Ford's psychological condition. Specifically, the court had to assess whether the AAT had correctly applied the principles established in *Comcare v Martin* regarding the distinction between an injury and a disease, and the evidentiary burden on an applicant to demonstrate that their employment contributed to the development of a disease.

The Court found that the AAT had misconstrued the nature of Mr Ford's condition, treating it as a single, discrete injury rather than a progressive disease. It held that the AAT's approach failed to adequately account for the cumulative effects of workplace stressors over time, which is a key characteristic of a disease. The Court reiterated that for a disease to be compensable under the Act, it must be contributed to by the employment, and that contribution can be established by demonstrating that the employment was a contributing factor, even if not the sole or predominant factor. The Court concluded that the AAT had applied an incorrect legal test in its assessment of the evidence.

The Federal Court allowed the appeal, set aside the AAT's decision, and remitted the matter to the AAT for redetermination according to law.

Orders