Holt v Comcare - [2003] FCAFC 221

FEDERAL COURT OF AUSTRALIA
Holt v Comcare [2003] FCAFC 221
COMMONWEALTH EMPLOYEES’ COMPENSATION – stress-related asthma – aggravation by working conditions – employee ceased work – subsequent termination of compensation payments – whether effects of work-related injury persisted – whether Administrative Appeals Tribunal asked itself wrong question – whether appellant put case as one of aggravation of underlying condition or enhanced susceptibility – relevance of absence of major asthma attack for 15 years and absence of consultation with treating specialist for 13 years
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 16, 19
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Superannuation Act 1922 (Cth)
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 considered
Craig v South Australia (1995) 184 CLR 163 referred to
VIVIENNE HOLT v COMCARE
S 289 of 2002
GRAY, COOPER AND SELWAY JJ
3 OCTOBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 289 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

VIVIENNE HOLT
APPELLANT

AND:

COMCARE
RESPONDENT

JUDGES:

GRAY, COOPER AND SELWAY JJ

DATE OF ORDER:

3 OCTOBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.        The appeal be dismissed.
2.        The appellant pay the respondent’s costs of the appeal.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 289 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

VIVIENNE HOLT
APPELLANT

AND:

COMCARE
RESPONDENT

JUDGES:

GRAY, COOPER AND SELWAY JJ

DATE:

3 OCTOBER 2003

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
THE COURT:
The nature of the appeal

This appeal is from a judgment of a judge of the Court. On 28 November 2002, his Honour dismissed an appeal by the present appellant from a decision of the Administrative Appeals Tribunal (‘the Tribunal’). His Honour also ordered that the appellant pay the respondent’s costs of that appeal and that each party pay her and its costs in respect of the notices of motion respectively filed by the parties in the proceeding.
The decision of the Tribunal was made on 24 December 2001. The Tribunal affirmed a decision of the respondent, Comcare, of 3 January 2001. The decision of Comcare was to affirm a determination of 4 October 2000 that Comcare was no longer liable to pay compensation to the appellant, pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), in relation to her condition of ‘aggravation of

stress-related asthma’, which had been accepted as entitling her to compensation since 4 April 1985.
By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), a party to a proceeding before the Tribunal may appeal to the Court, on a question of law, from any decision of the Tribunal in that proceeding. The appeal to the learned primary judge was therefore limited to questions of law. It follows…

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 Holt v Comcare

Details

AGLC: Holt v Comcare [2003] FCAFC 221
Case: [2003] FCAFC 221
Decision Date: 3 OCTOBER 2003

CaseChat Overview and Summary

The case of Holt v Comcare involved the appellant, who sought compensation for an injury suffered during her employment with the Australian Public Service. The dispute centred on whether the appellant's asthma, which had worsened over time, was an injury within the meaning of the Superannuation and Retirement Benefits Act 1992 (Cth). The case was heard in the High Court of Australia. The primary legal issue the court needed to decide was whether the appellant's worsening asthma constituted an injury under the Act, and if so, whether it was materially contributed to by her employment. This determination was crucial as it would affect her eligibility for compensation under the Act.

The court examined the definition of 'injury' in the Act, which includes 'a disease suffered by an employee', and the definition of 'disease', which includes any ailment contributed to in a material degree by the employee’s employment. The court had to assess the medical evidence and the Tribunal's findings regarding the appellant's condition and the impact of her employment on her asthma. The court found that the Tribunal had correctly assessed the evidence and made findings that were supported by the material before it. The court rejected the appellant's argument that the Tribunal had relied on irrelevant considerations or failed to take into account relevant ones, affirming the Tribunal's decision.

Given the reasoning and findings of the court, the appeal was dismissed. The court ordered the appellant to pay the respondent's costs of the appeal, in accordance with the usual rule that costs follow the event. This outcome highlights the importance of the tribunal's role in assessing factual matters and the limited scope of appellate review in such cases.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

Section 16 of the SRC Act provides that Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to an injury suffered by an employee, compensation of such amount as Comcare determines is appropriate to that medical treatment. Section 19 provides that Comcare is liable to pay to an employee, who is incapacitated for work as a result of an injury, weekly payments of compensation. The term ‘injury’ is defined in s 4(1) of the SRC Act. The definition includes ‘a disease suffered by an employee’. The term ‘disease’ is defined in the same provision. The definition includes any ailment suffered by an employee, or the aggravation of any such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth. The word ‘ailment’ is also defined to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. The facts The following is a summary of the facts based on the findings of fact of the Tribunal. The appellant, who was 54 years old at the time of the Tribunal decision, was born and grew up in Adelaide. She gave evidence that, on occasions during childhood, she became wheezy and breathless, without apparent cause, but could not connect this to any particular activity or situation. She never consulted a doctor in Adelaide about asthma, nor had any form of treatment. She led an active lifestyle, walking, canoeing and kayaking. In November 1971, the appellant married a public servant. She joined the Australian Public Service in July 1973. According to her evidence, at the time of her appointment, she was examined by a medical officer and her mild asthma was not seen as a deterrent, whereas severe asthma would have precluded employment in the public service and qualification for superannuation. There was documentary evidence that a Benefit Classification Certificate was issued under the Superannuation Act 1922 (Cth) in relation to the appellant’s asthma, and her probation period was extended to 12 months. In due course, she became a permanent officer in the public service. In February 1974, the appellant and her husband were transferred to Canberra. They resided in hostel accommodation initially. Shortly after their arrival, a general practitioner diagnosed the appellant as suffering from bronchitis, and prescribed Ventolin. The appellant returned to work after two weeks. Her asthma symptoms became worse. By March 1975, she was using Ventolin more frequently and it was having less effect. On 23 March 1975, she collapsed at home in the evening and was admitted to Canberra Hospital, suffering from an acute asthma attack with pulmonary arrest. She remained in hospital until 5 April 1975. She was readmitted on 20 April 1975, although the hospital notes recorded that her chest tightness was not characteristic of asthma. She was admitted to hospital again on 1 March 1976 and remained there until 6 March 1976, having been diagnosed with pneumonia.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY, COOPER AND SELWAY JJ

The Tribunal did not ignore the case put by the appellant. It rejected it, having regard to the evidence tendered by Comcare. This was the very function of the Tribunal. The appellant’s real complaint is that the Tribunal should have made findings of fact more favourable to her. That is not a case that she is entitled to put on appeal to this Court, because it does not involve a question of law. The learned primary judge was correct in rejecting the appellant’s arguments that the Tribunal had relied on irrelevant considerations and failed to take into account relevant ones. Conclusion For these reasons, the appeal must be dismissed. In accordance with the usual rule, that costs follow the event, the appellant should be ordered to pay Comcare’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY, COOPER AND SELWAY JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 289 of 2002

BETWEEN:	VIVIENNE HOLT APPELLANT
AND:	COMCARE RESPONDENT
JUDGES:	GRAY, COOPER AND SELWAY JJ
DATE OF ORDER:	3 OCTOBER 2003
WHERE MADE:	ADELAIDE

JUDGES:	GRAY, COOPER AND SELWAY JJ
DATE:	3 OCTOBER 2003
PLACE:	ADELAIDE