Houston and Comcare - [2005] AATA 99

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 99
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/641

GENERAL ADMINISTRATIVE DIVISION
)

Re BRIGID HOUSTON

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S C Fisher, Member
Date3 February 2005
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
S C Fisher
Member

CATCHWORDS
COMPENSATION – Incapacity – Benefits and entitlements – Whether respondent is liable to pay accommodation costs (rent) while modifications are carried out to the applicant’s home – Construction of section 39 of the Safety, Rehabilitation and Compensation Act 1988 – Section 39 does not extend respondent’s liability to pay cost of alternative accommodation – Respondent not liable to pay alternative accommodation costs – Decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 29, 39, 61, 67
Acts Interpretation Act 1901 ss 15AA, 15AB
Secretary, Department of Social Security v Murphy, Federal Court, 29 June 1998, 908/98; (1998) 52 ALD 269
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; (1981) 4 ALD 198
Wilby and Comcare [2001] AATA 739
Wilby and Comcare [2003] AATA 651
Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579; (2002) 72 ALD 333
Walton and Comcare [2003] AATA 547; (2003) 74 ALD 539
Howard and Comcare [2003] AATA 1316
Australian Postal Corporation v Forgie [2003] FCAFC 223;(2003) 202 ALR 63; (2003) 76 ALD 578
REASONS FOR DECISION

3 February 2005 Mr S C Fisher, Member

Introduction and Background
1.      Mrs Brigid Houston (the Applicant) was employed by Centrelink at all material times. The Applicant was injured in an accident at work on 2 August 2002, sustaining “fracture of lateral malleolus closed (right)”. The Applicant subsequently developed a condition of “massive pulmonary embolism”. Comcare (the Respondent) accepted liability for both conditions on 4 November 2002. The Applicant subsequently made several claims for compensation for the cost of medical treatment and for various aids and appliances. For the purposes of this appeal, it is not necessary to state or identify those claims in any detail and the consequential determinations made by the Respondent. The Respondent did accept liability for the cost of the payment of certain modifications to the Applicant’s home necessitated by the Applicant’s work-related injuries.
2.      On 24 June 2004, in response to a claim dated 29 February 2004 by the Applicant, the Respondent denied liability to pay for the cost of alternative accommodation (rent) during the period when modifications are being carried out to the Applicant’s home. On 7 July 2004 the Applicant, through her husband who is representing the Applicant in her dealings with the Respondent, requested a reconsideration of the 24 June 2004 determination. On 19 July 2004, the Respondent’s reconsideration denied such liability. The Applicant appealed to…

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 Houston and Comcare

Details

AGLC: Houston and Comcare [2005] AATA 99
Case: [2005] AATA 99
Decision Date: 3 February 2005

CaseChat Overview and Summary

The applicant in this case, Houston, sought compensation from Comcare, the respondent, for incapacity benefits and entitlements. The matter was heard in the Administrative Appeals Tribunal, where the primary issue was whether Comcare was liable to pay the costs of alternative accommodation while modifications were being made to Houston's home. The case hinged on the interpretation of section 39 of the Safety, Rehabilitation and Compensation Act 1988, specifically whether it extended Comcare's liability to cover the cost of alternative accommodation.

The Tribunal carefully considered the language and purpose of section 39, examining relevant case law and statutory interpretation principles. It concluded that section 39 did not impose a broader obligation on Comcare to cover the cost of alternative accommodation. The Tribunal referenced decisions such as Secretary, Department of Social Security v Murphy, Ajka Pty Ltd v Australian Fisheries Management Authority, and Haberfield v Department of Veterans’ Affairs, among others, to support its interpretation. The Tribunal also applied statutory interpretation tools from the Acts Interpretation Act 1901 to ensure a faithful reading of the legislation.

Based on its analysis, the Tribunal found that Comcare was not liable to pay the costs of alternative accommodation. It affirmed the decision under review, rejecting Houston's claim for incapacity benefits related to the cost of alternative accommodation. The Tribunal's decision was grounded in a detailed examination of the statutory language and its consistent application to the facts of the case.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		BRIGID HOUSTON