Gropel v Comcare

Case [2018] FCA 1146

FEDERAL COURT OF AUSTRALIA

Gropel v Comcare [2018] FCA 1146

Appeal from: Gropel v Comcare [2017] AATA 1290
File number: VID 1006 of 2017
Judge: DAVIES J
Date of judgment: 3 August 2018
Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – liability to pay compensation under section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – when “disease” suffered within meaning of the term as defined in section 5B – whether exclusion in definition of “injury” under section 5A engaged – nature of causal connection required by exclusionary phrase in section 5A(1)
Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases cited:

Comcare v Martin (2016) 258 CLR 467

Lim v Comcare (2017) 250 FCR 298

Smith v Comcare (2013) 212 FCR 335

Date of hearing: 13 June 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 25
Counsel for the Applicant: Mr N Horner with Mr R Ternes
Solicitor for the Applicant: Adviceline Injury Lawyers
Counsel for the Respondent: Mr J Wallace
Solicitor for the Respondent: Comcare – Claims and Liability Management

ORDERS

VID 1006 of 2017
BETWEEN:

NATASHA GROPEL

Applicant
AND:

COMCARE

Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

3 AUGUST 2018

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The order made by the Administrative Appeals Tribunal be set aside.

3.The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

4.Subject to order 5, the respondent is to pay the applicant’s costs to be taxed in default of agreement.

5.Liberty to the parties to apply within five days to set aside or vary order 4.

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


REASONS FOR JUDGMENT

DAVIES J:

  1. The applicant has appealed the decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming the decision of the respondent (“Comcare”) that Comcare is not liable to pay compensation to the applicant under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

    Legislation

  2. By s 14(1) of the Act, Comcare is liable to pay compensation to an employee in respect of an “injury” suffered by the employee, if that “injury” results in incapacity for work and the “injury” was not suffered by the employee “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

  3. Section 5A of the Act defines “injury” as follows:

    Definition of injury

    (1)       In this Act:

    injury means:

    (a)       a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is…

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Details
AGLC
Gropel v Comcare [2018] FCA 1146
Case
[2018] FCA 1146
Decision Date

CaseChat Overview and Summary

The matter before the Court was an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal). The appellant, Gropel, sought compensation for a psychological condition which she claimed was caused by her employment with the Department of Defence. The Tribunal found that the appellant's psychological condition was a disease within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth) but that it fell within an exclusion in the definition of injury under section 5A(1) of the Act. The appellant appealed the Tribunal's decision to the Court.

The key legal issue before the Court was whether the Tribunal had correctly determined that the appellant's psychological condition was excluded from compensation under the Act because it arose as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. This required the Court to consider the nature of the causal connection required by the exclusionary phrase in section 5A(1) of the Act. The Court also had to consider whether the Tribunal had correctly determined the date on which the appellant's psychological condition became diagnosable and whether that condition was caused by a work-related meeting that took place on 17 March 2014.

The Court found that the Tribunal had erred in its determination of the date on which the appellant's psychological condition became diagnosable. The Court held that the Tribunal had placed too much weight on the opinion of one medical expert and had failed to adequately consider the evidence of the other experts. The Court also held that the Tribunal had not correctly applied the exclusionary phrase in section 5A(1) of the Act. The Court found that the exclusionary phrase required a more direct causal connection between the reasonable administrative action and the psychological condition than had been established by the Tribunal. The Court accordingly allowed the appeal, set aside the Tribunal's decision and remitted the matter to the Tribunal for determination according to law.

The Court ordered that the appeal be allowed, the order made by the Administrative Appeals Tribunal be set aside, and the matter be remitted to the Administrative Appeals Tribunal for determination according to law. The Court also ordered that the respondent was to pay the appellant's costs to be taxed in default of agreement, subject to the parties' liberty to apply to set aside or vary that order within five days.

Orders

Orders of the court

1. The appeal be allowed.

2. The order made by the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

4. Subject to order 5, the respondent is to pay the applicant’s costs to be taxed in default of agreement.

5. Liberty to the parties to apply within five days to set aside or vary order 4.

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

Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.Tribunal decision The “injury” for which the applicant sought compensation was a psychological condition. There was no dispute before the Tribunal that the applicant suffers from a psychological condition or that her psychological condition is an “ailment” which was contributed to, to a significant degree, by her employment at the Department of Defence and a “disease” within the meaning of that term as defined in s 5B of the Act. It was also not in dispute that the applicant’s psychological condition resulted in incapacity for work. In issue before the Tribunal, however, was when the applicant suffered the “disease”. The determination of that issue was relevant to determining whether the exclusion to the definition of “injury” applied, namely whether the psychological condition suffered by the applicant was “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. Both parties led medical evidence from consultant psychiatrists which varied as to when the condition first became diagnosable. According to Dr David Weissman the applicant had symptoms that were troubling and distressing her in December 2013 but, in his opinion, “they were not necessarily diagnosable to the extent that they had an impact on her occupational functioning or social interpersonal functioning until March 2014”. It was the view of Dr Lester Walton that the applicant’s psychiatric condition “likely had reached diagnosable proportions towards the end of 2013, very probably by March 2014 when she sought medical advice, and certainly by September 2014 when she was suffering from panic attacks that precipitated her departure from work”. In the assessment of Dr Norman Rose, the applicant likely had the psychiatric condition by late 2013 or early 2014. The Tribunal preferred Dr Weissman’s opinion, reasoning that he examined the applicant on two occasions and that his first assessment was carried out in October 2015, which was closer to relevant events than the examinations by the other consultant psychiatrists. The Tribunal found that the “date of the disease” suffered by the applicant was 19 March 2014, being the date on which the applicant first consulted a medical practitioner “after her psychological symptoms became diagnosable and she was incapacitated for work”. The Tribunal also found that:(a)the applicant would not have suffered her psychological condition if a work related meeting on 17 March 2014 had not taken place; (b)the 17 March 2014 meeting constituted reasonable administrative action; and(c)the reasonable administrative action was taken in a reasonable manner. The Tribunal accordingly affirmed the decision under review on the basis that the applicant’s condition fell within the exclusion in the definition of an “injury” under s 5A of the Act.Grounds of appeal

Ratio Decidendi

Legal Principle Established

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