Hawkins and Comcare - [2011] AATA 450

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 450
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2807

GENERAL ADMINISTRATIVE DIVISION )

Re Paul Hawkins

Applicant

And

Comcare

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Date28 June 2011
PlaceSydney

Decision
The Tribunal sets aside the decision under review and in substitution decides that the respondent is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate the applicant.

..................[sgd]............................
Senior Member

CATCHWORDS
COMPENSATION – depression – not in dispute that applicant’s employment contributed in material degree to his condition – whether claim excluded – whether injury was result of failure to obtain a benefit – pay increment – Tribunal not satisfied failure to obtain pay increment contributed in a material degree to applicant’s condition – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14
Hart and Comcare [2005] FCAFC 16
Dunstan and Comcare [2010] AATA 449
TAJ and Concare [2011] AATA 154
Comcare v Sahu-Khan (2007) 156 FCR 536
Wiegand and Comcare [2010] AATA 790
REASONS FOR DECISION

28 June 2011 Senior Member Jill Toohey

Background

1.      In October 2000, Paul Hawkins started work as a level 3 civilian technical officer in the ground telecommunications equipment systems program office (GTESPO) in the Department of Defence (the Department). He claims he developed depression as a result of the treatment he experienced over the course of his employment.
2.      After a meeting in September 2004 at which he was told his pay increment would be deferred unless he met performance expectations, Mr Hawkins left work and did not return. His employment was terminated in April 2005.
3.      In August 2008, Mr Hawkins lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for “adjustment reaction with mixed emotional features” arising out of his employment.
4.      It is not in dispute in these proceedings that Mr Hawkins suffers from depression (variously described as major depressive disorder, adjustment disorder, and adjustment reaction with mixed emotional features).
5.      It is no longer in dispute that Mr Hawkins’ employment contributed in a material degree to his psychiatric condition. However, the respondent contends that his condition is not a compensable injury because it resulted from his failure to obtain a benefit, namely a pay increment to which he would otherwise have been due in November 2004, and is thereby excluded from the meaning of injury in the Act.
The legislation
6. By s 14(1) of the Act, the respondent is liable to pay compensation in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
7.      As it was at the material time, prior to amendment on 12 April 2007, s 4(1) of the Act defined injury as:
(a)   a disease suffered by an employee; or
(b)   an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment;…

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 Hawkins and Comcare

Details

AGLC: Hawkins and Comcare [2011] AATA 450
Case: [2011] AATA 450
Decision Date: 28 June 2011

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Hawkins brought a claim against Comcare for compensation for depression, which he argued was caused by his employment. The central issue was whether the applicant’s claim was excluded from compensation under the Safety, Rehabilitation and Compensation Act 1988. The court needed to determine if the failure to obtain a pay increment contributed to the applicant’s depression in a material degree. The primary legal issue was whether the injury was a result of the failure to obtain a benefit or whether it was caused by the employment itself.

The court examined whether the failure to obtain a pay increment was a material contributing factor to the applicant’s condition. It considered previous cases such as Dunstan and Comcare, TAJ and Comcare, and Comcare v Sahu-Khan, which had dealt with similar issues. The Tribunal was not satisfied that the failure to obtain a pay increment contributed in a material degree to the applicant’s condition. The court found that the employment itself was the primary cause of the depression, and therefore, the claim was not excluded from compensation under the Act. Consequently, the decision under review was set aside.

The court concluded that Comcare was liable to compensate the applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal ordered that the respondent was liable to compensate the applicant.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution decides that the respondent is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate the applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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