Kim Foley and Comcare - [2012] AATA 458

[2012] AATA 458

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/0475

Re

Kim Foley

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Deputy President P E Hack SC

Date 20 July 2012

Place Brisbane (heard in Townsville)
The decision under review is affirmed.
...............................[Sgd]...................................
Deputy President P E Hack SC
Catchwords
COMPENSATION – Injury – injury arising out of, or in the course of employment – no intention to return – not at direction or request of the Commonwealth to transport applicant to hospital – request not related to the performance of the employee’s ordinary duties – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 6(1), 14
Cases
Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474
Repatriation Commission v Law (1980) 47 FLR 57
Telstra Corporation Limited v Bowden [2012] FCA 576
REASONS FOR DECISION
Deputy President P E Hack SC
20 July 2012
Introduction

The applicant, Ms Kim Foley, is an employee of the Australian Taxation Office at its Townsville office. On the morning of 11 April 2011 Ms Foley arrived at work at approximately 7 am. Shortly after her arrival she experienced chest pains. An ambulance was called and when it arrived she was placed on a stretcher and conveyed by ambulance officers to the ambulance vehicle.
In circumstances which are difficult to comprehend, Ms Foley fell from the stretcher to the ground. As a consequence of that fall, Ms Foley's right elbow was badly fractured.
In April 2011 Ms Foley made a claim on the respondent, Comcare, for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). On 24 May 2011 Comcare determined that it was not liable to pay Ms Foley compensation in respect of her claim. That decision was affirmed on reconsideration on 13 July 2011.
Ms Foley now seeks a review of Comcare's decision.
The legislation
By virtue of section 14 of the SRC Act, Comcare is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. There is no doubt that Ms Foley was an employee and that the result of the incident was at least incapacity for work. The issue that arises in the present proceedings is whether Ms Foley suffered an injury as that term is defined in the SRC Act.
The term is defined in section 5A of the SRC Act as meaning a disease or an injury (other than a disease) suffered by an employee that is a physical or mental injury arising out of, or in the course of, the employees employment. There are some exclusionary provisions but it is unnecessary to consider them in the present case. In the dichotomy of disease and injury in the SRC Act, Ms Foley's condition, if it is anything, is an injury properly so-called rather than a disease.
The expression "arising out of, or in the course of, the employees employment" is not…

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 Kim Foley and Comcare

Details

AGLC: Kim Foley and Comcare [2012] AATA 458
Case: [2012] AATA 458
Decision Date: 20 July 2012

CaseChat Overview and Summary

Kim Foley brought a claim against Comcare for compensation relating to an injury she sustained. The primary issue before the court was whether the injury arose out of or in the course of her employment. This determination hinged on whether the injury could be linked to her employment activities under sections 6(1)(f) or (g) of the Social Security Act. The court was tasked with deciding if the injury was incurred during an event that was integral to her employment or if it occurred in a manner that could be considered an incident of employment.

The court examined the circumstances surrounding Ms Foley's injury, focusing on whether it occurred during an activity directly related to her employment or if it was an independent event not connected to her work. It was established that Ms Foley had no intention to return to work and the incident did not involve any direction or request from the Commonwealth to transport her to the hospital. Additionally, the event was not linked to the performance of her ordinary duties. Given these findings, the court concluded that the injury did not arise out of or in the course of her employment.

In affirming the decision under review, the court determined that the injury was not compensable under the specified sections of the Social Security Act. The court's reasoning was based on the lack of connection between the injury and Ms Foley's employment activities. Consequently, the decision to deny the compensation claim was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On that basis I am not satisfied that Ms Foley’s condition arose out of, or in the course of, her employment by operation of either of ss 6(1)(f) or (g) of the SRC Act.Conclusion It follows that I would affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0475
Re	Kim Foley
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President P E Hack SC
Date	20 July 2012
Place	Brisbane (heard in Townsville)