Gaffey v Comcare

Case [2015] FCA 1024

FEDERAL COURT OF AUSTRALIA

Gaffey v Comcare [2015] FCA 1024

Citation: Gaffey v Comcare [2015] FCA 1024
Appeal from: Gaffey v Comcare [2014] AATA 659
Parties: PRUDENCE GAFFEY v COMCARE
File number: ACD 98 of 2014
Judge: WIGNEY J
Date of judgment: 15 September 2015
Catchwords: ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – review of a decision to disallow a compensation claim – whether the Administrative Appeals Tribunal made an error of law in its review of a compensation claim – whether the Administrative Appeals Tribunal made an error of law in determining a major depressive disorder as an injury under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Administrative Appeals Tribunal erred in law in determining the date of injury – whether injury was a result of reasonable administrative action taken in a reasonable manner in respect of employee’s employment pursuant to s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Federal Court Rules 2011 (Cth), r 33.12
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5, 5A, 5B, 7(4), 14
Cases cited: Comcare v Mooi (1996) 69 FCR 439
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262; 19 ALD 726
Haritos v Commissioner of Taxation [2015] FCAFC 92
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Smith v Comcare (2013) 212 FCR 335
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
Date of hearing: 23 February 2015
Place: Sydney (heard in Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 108
Counsel for the Applicant: Mr A Anforth
Solicitor for the Applicant: Lander & Co
Counsel for the Respondent: Ms R Henderson
Solicitor for the Respondent: Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 98 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

PRUDENCE GAFFEY
Applicant
AND:

COMCARE
Respondent

JUDGE:

WIGNEY J

DATE OF ORDER:

15 SEPTEMBER 2015

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant pay the respondent’s costs as agreed or assessed.

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


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 98 of 2014
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

PRUDENCE GAFFEY
Applicant
AND:

COMCARE
Respondent

JUDGE:

WIGNEY J

DATE:

15 SEPTEMBER 2015

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

  1. This matter concerns the labyrinthine world of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), the sad case of a senior public servant whose psychiatric condition was adversely affected by a number of performance development meetings in her workplace, and a somewhat confused and confusing decision of the Administrative Appeals Tribunal (the Tribunal

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AGLC
Gaffey v Comcare [2015] FCA 1024
Case
[2015] FCA 1024
Decision Date

CaseChat Overview and Summary

The appeal in Gaffey v Comcare concerns the decision of the Administrative Appeals Tribunal (AAT) to disallow a claim for workers' compensation made by Ms Gaffey. The dispute revolves around whether the AAT erred in its interpretation and application of the relevant statutory provisions in assessing Ms Gaffey's eligibility for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Federal Court was tasked with determining if the AAT made any errors of law in classifying Ms Gaffey's major depressive disorder as a disease, in establishing the date of injury, and in assessing whether the injury resulted from reasonable administrative actions taken in a reasonable manner.

The primary legal issues before the court included whether the AAT correctly classified Ms Gaffey's condition as a disease under the Act, whether the AAT appropriately determined the date of the injury, and if the AAT correctly assessed whether Ms Gaffey's injury was a result of reasonable administrative action. The court had to examine the AAT's reasoning and application of the statutory criteria in light of the evidence presented. Specifically, it needed to evaluate whether the AAT's classification of Ms Gaffey's condition, its determination of the injury date, and its assessment of the administrative actions were legally sound and supported by the evidence.

The court found that while the AAT did classify Ms Gaffey's condition as a disease, which was legally tenable given the statutory definitions, this classification did not affect the outcome of the appeal. The court held that even if the AAT had misclassified the condition, the result would have been the same because the critical factor was the AAT's finding that the condition resulted from reasonable administrative actions. The court also noted that the AAT's determination of the date of injury, although somewhat confused, did not impact the final outcome as the AAT concluded that the condition arose from reasonable administrative actions. The court ultimately determined that the AAT's decision was legally correct and dismissed the appeal.

The final orders of the court were that the appeal be dismissed and that Ms Gaffey pay the respondent’s costs as agreed or assessed. The court's decision affirmed the AAT's assessment that Ms Gaffey's claim was appropriately disallowed under the statutory framework.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal accepted the medical evidence that Ms Gaffey suffered from a major depressive disorder and generalised anxiety. It found that this condition was an aggravation of a secondary psychiatric condition, which had been accepted by Comcare in 2010. THE TRIBUNAL’S DECISION The Tribunal considered that Ms Gaffey’s review application raised four issues (reasons at [27]). They were: first, what is the diagnosis of the claimed psychiatric condition; second, what is the deemed date of injury of the condition; third, did Ms Gaffey’s employment contribute to the condition to a significant degree; and fourth, is any compensation excluded because the condition was “suffered as a result of reasonable administrative action taken in a reasonable manner”. In relation to the first issue, as already indicated, the Tribunal accepted that Ms Gaffey suffered from a major depressive disorder and generalised anxiety, and that this was an aggravation of a previously diagnosed condition. The Tribunal found that Ms Gaffey’s psychiatric condition was a “disease” for the purposes of the Act. The Tribunal’s finding that Ms Gaffey’s condition constituted a disease is perhaps not surprising. Given the definition of “disease” in s 5B of the Act, the finding was open on the evidence. Since “disease” is defined in s 5B in terms of an “ailment”, and “ailment” is defined in terms that include any “mental ailment, disorder, defect or morbid condition”, Ms Gaffey’s psychiatric condition could accurately be considered to be a disease. That said, the Tribunal appeared to proceed on the basis that it was somehow compelled by s 5B to classify Ms Gaffey’s condition as a disease, as opposed to, for example, a “mental injury” or an “aggravation of a … mental injury” within s 5A(1)(b) or (c) of the Act. This issue will be considered further below in the context of one of Ms Gaffey’s appeal grounds. The Tribunal’s findings in relation to the second issue, the date of injury, are, it must be said, somewhat confused and confusing. That is so, for at least two reasons. First, given that the Tribunal ultimately found that Ms Gaffey’s injury fell within the exclusion in s 5A(1) of the Act, it is unclear why the Tribunal considered that the date of the injury was an issue that it was required to decide. Second, in working out the date of Ms Gaffey’s injury, the Tribunal appears to have confused and conflated the concepts of “incapacity for work” and “impairment” and applied an incorrect test. So far as the Tribunal’s reasons are able to be understood, it appears that the Tribunal accepted, based on the evidence of Dr Saboisky, that Ms Gaffey was suffering an impairment by December 2012. The Tribunal found, however, that because Ms Gaffey’s condition did not incapacitate her for work until 6 February 2013, the date of the injury was found to be 6 February 2013. The Tribunal’s conclusion was expressed in the following terms (reasons at [43]):Although Ms Gaffey may have suffered cognitive difficulties in the latter part of 2012, that impairment did not incapacitate her for work until February 2013. For that reason the Tribunal finds that the 6 February 2013 is the date of injury.

Ratio Decidendi

Legal Principle Established

In relation to the third group of questions, Ms Gaffey attacked the Tribunal’s findings in relation to the reasonableness of the actions of Ms Nathan and Ms Laut in a number of different ways. In broad terms, Ms Gaffey submitted that the Tribunal’s finding in this regard was unsupported by, or contrary to, the evidence, was unreasonable, or involved a denial of procedural fairness. The denial of procedural fairness was said to arise from two matters: first, Ms Gaffey alleged that the Tribunal failed to address a submission put to it by Ms Gaffey’s counsel; and second, Ms Gaffey contended that the Tribunal failed to raise with Ms Gaffey’s counsel the fact that Ms Laut’s comments might be considered to be a reasonable action of the kind expected of a mentor. CONSIDERATION OF QUESTIONS 1, 2, 3 – THE DISEASE FINDING The fundamental difficulty for Ms Gaffey in relation to questions 1, 2 and 3 (and related grounds), which concern the Tribunal’s finding that Ms Gaffey’s condition was a disease, or an aggravation of a disease, is that even if the Tribunal erred in law as alleged, Ms Gaffey would not be entitled to the relief she seeks. Nor would she necessarily be entitled to any other relief. That is because, even if the Tribunal had found, as Ms Gaffey submits it should have, that her condition was a “mental injury (other than a disease)” or an aggravation of a mental injury, rather than a disease, the outcome in the Tribunal would unquestionably have been the same. The Tribunal’s finding that Ms Gaffey’s diagnosed major depressive disorder and generalised anxiety was a disease, or an aggravation of a disease, meant that, but for the Tribunal’s finding that the disease or aggravation was suffered as a result of reasonable administrative action, Ms Gaffey’s condition was an “injury” for the purposes of s 14 of the Act. It was the finding of reasonable administrative action alone that led the Tribunal to affirm the decision under review. There is nothing to suggest that, had the Tribunal found that Ms Gaffey’s condition was a mental injury or an aggravation of a mental injury (within s 5A(1)(b) or (c) of the Act), as opposed to a disease (within s 5A(1)(a) of the Act), this would have altered in any way the Tribunal’s finding concerning the reasonableness of the actions of Ms Nathan and Ms Laut. The result would accordingly have been the same. Ms Gaffey submitted that the Tribunal’s finding of disease rather than “injury simpliciter” did alter, or have an effect on, the Tribunal’s finding of reasonable administrative action. Her arguments in this regard turned on the fact that the required “work nexus” for an injury is lower than the work nexus for a disease. For a mental injury to be an injury for the purposes of s 5A(1) of the Act, it must arise out of, or in the course of, the employee’s employment. A disease, on the other hand, must have been contributed to, to a significant degree, by the employee’s employment for it to be a disease for the purposes of s 5B(1) of the Act.