Hawkins v Comcare

Case [2001] FCA 726

FEDERAL COURT OF AUSTRALIA

Laurel Alma Hawkins v Comcare [2001] FCA 726

Workers Compensation – Employee working in poorly ventilated building and smoking permitted in the workplace – nine out of ten workers smoked – stressful work as a RAAF signals operator – worker took up smoking and became a heavy smoker – death from atherosclerosis – whether disease due to the nature of his employment – whether employment a contributing factor to the aggravation or acceleration of the disease.

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Commonwealth Employees’ Compensation Act 1930 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Migration Act 1958 (Cth): s 430

Behan v Australia Telecommunications Corporation (1990) 99 ALR 79
The Commonwealth v Bourne (1960) 104 CLR 32
Connair Pty Ltd v Frederiksen (1979) 142 CLR 485
Re Busby and Commonwealth of Australia (1987) 12 ALD 559
Marshall v East Holywell Coal Co (1905) 93 LT 360
Steel v Cammell Laird & Co [1905] 2 KB 232
The Commonwealth v Ockenden (1958) 99 CLR 215
Kavanagh v The Commonwealth (1960) 103 CLR 547
Hatzimanolis v ANI Corporation Ltd (1992) 106 ALR 611
Grant v Repatriation Commission (1999) 57 ALD 1
Hyundai Automotive Distributors v Australian Customs Service (1998) 51 ALD 45
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Minister for Immigration and Multicultural Affairs v Yusuf (2000) 75 ALJR 1105
Dixon v Repatriation Commission (1999) FCA 582

Willis’s Workmen’s Compensation Acts  1925 – 1943  (UK), 37th ed.

Matter No D 5 of 2001

LAUREL ALMA HAWKINS v COMCARE

von DOUSSA J
ADELAIDE (heard in Darwin)
17 DECEMBER 2001


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 5 OF 2001

BETWEEN:

LAUREL ALMA HAWKINS
APPELLANT

AND:

COMCARE
RESPONDENT

JUDGE:

von DOUSSA J

DATE OF ORDER:

17 DECEMBER 2001

WHERE MADE:

ADELAIDE (heard in Darwin)

THE COURT ORDERS THAT:

1.The application appealing from the decision of the Administrative Appeals Tribunal dated 22 December 2000 is dismissed. 

2.Each party shall bear her or its own costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D 5 OF 2001

BETWEEN:

LAUREL ALMA HAWKINS
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

von DOUSSA J

DATE:

17 DECEMBER 2001

PLACE:

ADELAIDE (heard in Darwin)

REASONS FOR JUDGMENT

  1. This is an appeal brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) from the decision of the Administrative Appeals Tribunal (the Tribunal) given on 22 December 2000. An appeal under s 44 lies to this Court only on a question of law.

  2. By its decision the Tribunal affirmed a decision of a delegate of the respondent, Comcare, denying liability to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act) in respect of the death of the applicant’s late husband, Robin Albert…

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Details
AGLC
Hawkins v Comcare [2001] FCA 726
Case
[2001] FCA 726
Decision Date

CaseChat Overview and Summary

In the case of Hawkins v Comcare, the applicant, Mr Hawkins, sought compensation for atherosclerosis, which he claimed was caused by his employment as a RAAF signals operator. His work environment was poorly ventilated, smoking was permitted, and a significant proportion of the workforce were smokers. Mr Hawkins took up smoking and became a heavy smoker during his employment, and his condition eventually led to his death. The dispute centred on whether his employment was the cause of the disease, or if it contributed to the aggravation or acceleration of the condition.

The legal issues before the court involved the interpretation and application of the relevant legislation, specifically the Workers Compensation Act. The court had to determine if the Tribunal was correct in its finding that there was no causal link between the applicant’s employment and his disease. Additionally, the court needed to address whether the Tribunal erred in its understanding of the onus of proof and the nature of the legislation.

The court found that the Tribunal did not misapply the law by failing to consider the 1971 Act or by placing the onus of proof on the applicant. The court held that the Tribunal was not satisfied that a causal relationship existed between Mr Hawkins’ employment and his atherosclerosis. The beneficial intent of the Workers Compensation Act was deemed irrelevant to the specific issues in this case. The appeal was dismissed, and as per the agreement between the parties, no order for costs was made.

The final orders of the court were to dismiss the appeal against the decision of the Administrative Appeals Tribunal and to direct that each party bear their own costs of the application.

Orders

Orders of the court

1. The application appealing from the decision of the Administrative Appeals Tribunal dated 22 December 2000 is dismissed.

2. Each party shall bear her or its own costs of the application.

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

The Tribunal was wrong in law in not applying in the circumstances of the employee the decision of Treloar v Australian Telecommunications Corporation (1990) 12 AAR 535 [also reported at 97 ALR 321]. This ground of appeal again raises complaint that the Tribunal failed to consider the application of the 1971 Act. Treloar v Australian Telecommunications Corporation is discussed above. I do not consider it assists the applicant.Ground K The Tribunal was wrong in law in requiring the applicant to carry the onus of proof and failing to recognise the beneficial nature of the legislation. In my opinion the Tribunal did not require the applicant to carry the onus of proof. The Tribunal simply concluded that it was not satisfied of the necessary relationship between Mr Hawkins’ atherosclerosis and his employment. The beneficial nature of legislation may be a relevant factor where it is necessary to construe an ambiguous provision within the legislation. In the present case, however, no such construction question arises and the beneficial nature of the legislation is irrelevant to the issues which were presented to the Tribunal, and which arise on this appeal. For these reasons I consider that the appeal must be dismissed. In accordance with the agreement between the parties there will be no order as to costs.