Khoo and Comcare - [2010] AATA 183

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 183
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4242

GENERAL ADMINISTRATIVE DIVISION )

Re GUAN KHOO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke
Date17 March 2010
PlaceCanberra

Decision
The Tribunal sets aside the reviewable decision and substitutes with the following decision:

1. Comcare is liable to pay compensation to Dr Khoo under section 14 of the Act in respect of the injury which resulted in Dr Khoo's incapacity for work or impairment.

2. The Tribunal also orders that the costs of these proceedings incurred by Dr Khoo be paid by the responsible authority subject to any submissions from the parties.

............................[sgd]...........................

Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Applicant suffered psychological injury – whether Applicant’s employment or the ‘number of other stressors’ in his life materially contributed to injury – whether Applicant’s perception of bullying/harassment based on fact – whether injury a result of ‘failure to obtain a benefit’ – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5, 7, 14, 67(8).
Re Albanese and Comcare [2004[ AATA 768
Comcare v Mooi (1996) 69 FCR 439
Comcare v Ross [1996] FCA 680
Comcare v Sahu-Khan (2007) 156 FCR 536
Re Davill and Australian Postal Corporation [1995] AATA 391
Golds v Comcare [1999] FCA 1481
Hart v Comcare (2005) 145 FCR 29
Re Millichap and Comcare [2009] AATA 127
Trewin v Comcare (1998) 156 ALR 615
Weigand v Comcare (2002) 72 ALD 795
17 March 2010 REASONS FOR DECISION

Professor RM Creyke

1.Dr Guan Khoo was employed from 1991 by the Therapeutic Goods Administration (TGA) Division, within the Department of Health and Ageing. From 2002, he worked as an auditor in the Manufacturer Assessment Branch, Good Manufacturing Practices (GMP) section. He suffered from a psychological injury, namely, anxiety or depression he claimed was due to workplace harassment by his employer. Dr Khoo has not worked since 24 October 2006.
2.He submitted a claim for compensation on 24 November 2007. In a decision of 18 April 2008, Comcare denied liability, a decision it affirmed on review on 4 August 2008. In doing so, Comcare assessed the date of injury as 13 November 2007 and found that Dr Khoo’s employment did not make a material contribution to his injury. On review on 4 August 2008, the decision was affirmed. The decision-maker relied in part on the exclusionary provision relating to ‘reasonable administrative action’.[1]
[1] Pursuant to Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A (as amended 1 July 2007).
3.On 11 September 2008, Dr Khoo sought review by the Tribunal.

Legislation
4.The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) are:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Comcare means the body corporate established by section 68.
Commonwealth,

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 Khoo and Comcare

Details

AGLC: Khoo and Comcare [2010] AATA 183
Case: [2010] AATA 183
Decision Date: 17 March 2010

CaseChat Overview and Summary

Dr Khoo sought compensation from Comcare for a psychological injury he claimed was caused by his employment. The dispute was heard by the Administrative Appeals Tribunal. The Tribunal was required to determine whether the employment or other stressors in Dr Khoo’s life materially contributed to the injury, whether his perception of bullying and harassment was based on fact, and whether the injury was a result of a failure to obtain a benefit. The Tribunal considered these issues in light of relevant case law and the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Tribunal found that Dr Khoo’s psychological injury was not solely attributable to his employment, as other stressors in his life also played a significant role. However, it concluded that the employment did materially contribute to the injury. Regarding the perception of bullying and harassment, the Tribunal found that Dr Khoo’s perception was based on fact, as there were instances of bullying and harassment in the workplace. The Tribunal also found that the injury was not a result of a failure to obtain a benefit. The Tribunal concluded that Comcare was liable to pay compensation to Dr Khoo for the injury that resulted in his incapacity for work or impairment.

The Tribunal set aside the reviewable decision and ordered that Comcare is liable to pay compensation to Dr Khoo under section 14 of the Act. The Tribunal also ordered that the costs of these proceedings incurred by Dr Khoo be paid by the responsible authority subject to any submissions from the parties. This decision provides clarity on the factors that the Tribunal considers when determining liability for compensation in cases of psychological injury.

Orders

Orders of the court

The Tribunal sets aside the reviewable decision and substitutes with the following decision:

1. Comcare is liable to pay compensation to Dr Khoo under section 14 of the Act in respect of the injury which resulted in Dr Khoo's incapacity for work or impairment.

2. The Tribunal also orders that the costs of these proceedings incurred by Dr Khoo be paid by the responsible authority subject to any submissions from the parties.

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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