Jensen v Comcare Australia - [2000] FCA 1684

FEDERAL COURT OF AUSTRALIA
Jensen v Comcare Australia [2000] FCA 1684
DOUGLAS JENSEN V COMCARE AUSTRALIA
V 365 OF 2000
NORTH J
3 OCTOBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 365 OF 2000

BETWEEN:

DOUGLAS JENSEN
APPLICANT

AND:

COMCARE AUSTRALIA
RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

3 OCTOBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS BY CONSENT THAT:
1.Any further questions arising under the appellant’s claim for compensation other than the question determined by the orders of the Administrative Appeals Tribunal made on 1 May 2000 are remitted for initial determination by the respondent.

AND FURTHER ORDERS THAT:
2.The respondent pay the appellant 90 percent of his taxed costs of and incidental to this appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 365 OF 2000

BETWEEN:

DOUGLAS JENSEN
APPLICANT

AND:

COMCARE AUSTRALIA
RESPONDENT

JUDGE:

NORTH J

DATE:

3 OCTOBER 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

These reasons concern only the question of costs, as the substantive issues in this application were resolved by consent between the parties on the morning of the hearing. However, in order to understand the costs issue to be determined, it is necessary to set out briefly the background to this application.
The appellant, Mr Jensen, has appealed against a decision of the Administrative Appeals Tribunal (the Tribunal) made on 1 May 2000. In that decision, the Tribunal determined that:
(1)the applicant had suffered a sequelae to the injuries of hearing loss and tinnitus, namely, reactive depression;
(2)the respondent was liable for reasonable medical and like expenses arising out of the applicant's treatment for the injury; and
(3)the respondent was liable to pay the applicant's costs of that application.
The determination of the Tribunal appears to relate to the issue which has to be resolved under s 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (the Act) which provides, relevantly, in subsection (1):
“Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
The issue which the determination addresses is the issue which was at the centre of debate between the parties at the Tribunal hearing, namely, whether the reactive depression followed as a result of the hearing loss and tinnitus. In truth, the determination under s 14 is but a first step in the determination of various other rights under the Act. Two of those rights are relevant for present purposes. One is contained in s 16(1) of the Act which provides:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment …”

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 Jensen v Comcare Australia

Details

AGLC: Jensen v Comcare Australia [2000] FCA 1684
Case: [2000] FCA 1684
Decision Date: 3 OCTOBER 2000

CaseChat Overview and Summary

The case of Jensen v Comcare Australia involved Douglas Jensen, the appellant, and Comcare Australia, the respondent. The dispute pertained to the appellant's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for injuries he sustained while employed with the Department of Defence, which included hearing loss, tinnitus, and reactive depression. The case was heard in the Federal Court of Australia.

The primary legal issue addressed in this case was whether the reactive depression was a sequelae to the initial injuries of hearing loss and tinnitus, and therefore compensable under the Act. A secondary issue was whether the appellant was entitled to costs for the appeal proceedings. The Administrative Appeals Tribunal had previously determined that the reactive depression was a sequelae of the initial injuries and that Comcare was liable for the appellant's medical expenses. However, the Tribunal had also determined that the appellant was not incapacitated for work due to the initial injuries.

The court found that the Tribunal had indeed determined the issue of the link between the initial injuries and the reactive depression, but had not adequately addressed the question of the appellant's incapacity for work. The court concluded that the appellant was entitled to 90% of his taxed costs for the appeal proceedings, taking into account the lack of clarity regarding the definition of the matter before the Tribunal. The court also ordered that any further questions arising under the appellant's claim for compensation, other than the question determined by the Tribunal, be remitted for initial determination by Comcare Australia.

In summary, the court determined that the Tribunal had made an error in its determination of the appellant's incapacity for work and ordered the remission of further questions for Comcare to determine. The court also found in favour of the appellant regarding the costs of the appeal proceedings, awarding him 90% of his taxed costs.

Orders