Goodricke and Comcare (Compensation)

[2016] AATA 516

Goodricke and Comcare (Compensation) [2016] AATA 516 (20 July 2016)

Division	GENERAL DIVISION
File Number(s)	2016/3287
Re	Peter Goodricke
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Mr S. Webb, Member
Date	20 July 2016
Place	Canberra

The application is dismissed.

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

Mr S. Webb, Member

Catchwords

COMPENSATION – accepted injury – claim for compensation for injury resulting in death – claimant is not dead – meaning of ‘death’ – determination of entitlement cannot be made prospectively – no reasonable prospect of success – discretion – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 s 42B

Safety, Rehabilitation and Compensation Act 1988 ss 14, 17

REASONS FOR DECISION

Mr S. Webb, Member

20 July 2016

1. Peter Goodricke was injured in Commonwealth employment. He claimed compensation for which Comcare was liable. After several years, Mr Goodricke claimed compensation for death benefits. Comcare decided to reject the claim by primary determination and on reconsideration. Mr Goodricke applied for review.

   Brief facts

2. Comcare accepted liability for an injury sustained by Mr Goodricke on 14 February 2000, aggravation of chronic pain syndrome (bilateral), under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

3. On 17 April 2016, Mr Goodricke claimed compensation for death benefits under s 17 of the SRC Act.

4. On 2 May 2016, Comcare determined to reject this claim.

5. On 20 May 2016, Mr Goodricke set out extensive reasons behind the claim and requested reconsideration of the determination.

6. Comcare issued a reconsideration decision, affirming its initial determination, on 14 June 2016.

7. On 24 June 2016, Mr Goodricke applied for review to this Tribunal.

8. On 29 June 2016, the Tribunal listed Mr Goodricke’s application for an interlocutory dismissal hearing.

9. It is this matter, alone, that I will address in these reasons.

   Issues

10. The issue for determination is whether Mr Goodricke’s application is within the terms of s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and, if so, whether the discretion to dismiss his application should be exercised.

    Consideration

11. Mr Goodricke told me that his circumstances are most unfortunate – he experiences relentless pain and his ability to cope with the pain is adversely affected by his dealings with Comcare and by proceedings relating to and arising from compensation claims. He explained that he feels a constant pressure to justify his claims and this bears heavily on his psychological state, such that his mind is becoming unhinged to the extent that he does not want to continue any more – he does not have the financial and emotional capacity to do so. He told me that he faces an impossible situation – ongoing legal proceedings in respect of his compensation claims and 30 to 40 years of life in terrible pain with no prospect of relief. Rather than continue in these circumstances, Mr Goodricke alleged that he is making arrangements to bring about his end sooner than later. He did not specify what ‘arrangements’ he had in mind.

12. I should say immediately that Mr Goodricke raised these difficult matters without making any overt threat of imminent self-harm. He did so in a considered manner, calmly, in order to explain his thinking and his reasoning behind the claim he made. He told me that he indicated that he intended to consult his family and his psychiatrist.

13. It is on this background, he explained, that he considers it desirable to claim compensation under s 17 of the SRC Act – in the event of his demise, his estate should not be put to proof of his mental or psychiatric state in his absence.

14. There are a number of difficulties for Mr Goodricke.

15. Firstly, s 17 (1) of the SRC Act is in the following terms –

    (1)  This section applies where an injury to an employee results in death.

16. As can be seen, the section is essentially preconditioned by the occurrence of a death. Plainly enough Mr Goodricke is not dead.

17. Secondly, while the word ‘death’ is not defined in the legislation, the meaning of the word in common usage can readily be understood. I do not think that ‘death’ can be construed in a manner that includes life. While it may be argued that death is a part of life, being its end point, I do not think it can be argued that life is within the meaning of ‘death’ for the purposes of s 17 of the SRC Act. This is so, notwithstanding that in some cases the delineation of life from death may be difficult, and minds may differ about the precise point at which a death occurs. No such difficulty arises in this case.

18. As difficult as Mr Goodricke finds the circumstances of his life, those difficulties and circumstances are part of his experience of life, not death. And presently his circumstances are not within the terms of s 17.

19. I have considered Mr Goodricke’s extensive submissions in respect of the criminal law and the law of Canada. These submissions lack merit. The provisions to which he has referred, and the cases on which he relies, do not permit or compel a construction of the word ‘death’ or an interpretation of s 17 of the SRC Act that would permit an employee living with an injury to claim compensation, prospectively, for his or her death.

20. When construing the SRC Act, the language of the text and the purposes of the legislation must be considered. The purposes of Division 2, Part II of the SRC Act, and s 17 in particular, are quite clear – to make provision for payment of compensation in the eventuality that an injury to an employee results in death. The words ‘results in’ are words of cause and effect – the causal relationship is to an injury, and the effective result is a death. For the section to have operative effect, both elements must be established.

21. Thirdly, insofar as Mr Goodricke is pressing for a prospective determination of entitlements under s 17, this cannot be done. The Tribunal is bound to apply the legislation and the law. The legislation does not provide for the determination of compensation for injuries resulting in death in a prospective manner. As I have said, death is the essential preconditioning factor of s 17. For the purposes of that section, death is particular. The particular death is that of an injured employee – it is a death in fact, not a death in prospect, to which the section refers.

22. While it may be possible in some rare cases for Comcare, or in its shoes, this Tribunal, to make findings with elements of prospectivity in certain limited instances, in respect of medical treatment under s 16 or attendant care under s 29 for example, no such prospectivity is permissible under s 17. Under that section, it must be established that the death is the result of injury. For that purpose, the circumstances and causes of the particular death would need to be considered and assessed. Without that specific death, facts necessary to establish the preconditioning requirements of the section could not be found.

23. For these reasons, Mr Goodricke’s application has no reasonable prospect of success.

24. That being so, his application is within the terms of s 42B(1)(b) of the AAT Act and the discretion conferred by that section to dismiss his application is enlivened.

25. Having heard Mr Goodricke’s submissions, I am satisfied that there is no utility in allowing his application to proceed, and doing so would be an exercise in futility. Not only does the application have no reasonable prospect of success, allowing it to proceed would put the parties and the Tribunal to unnecessary costs. There are no public or other interests, besides those articulated by Mr Goodricke for himself and his family, that weigh in favour of allowing the application to proceed. On the contrary, the service of justice weighs against it.

26. Having considered all of the circumstances and the submissions of the parties, I am satisfied that it is appropriate to dismiss Mr Goodricke’s application under s 42B(1) of the AAT Act.

    Decision

27. The application is dismissed.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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

Associate

Dated 20 July 2016

Date of hearing	20 July 2016
Applicant	By telephone
Solicitor for the Respondent	Mr Christopher Bilboe Senior Legal Adviser