Leach and Comcare (Compensation) - [2018] AATA 1632

Leach and Comcare (Compensation) [2018] AATA 1632 (12 June 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4119
Re:Craig Leach
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal: Deputy President Dr P McDermott RFD
Date:12 June 2018
Place:Brisbane

The decision under review is affirmed.
.........................[SGD].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – Claim for mental injury arising out of the applicant’s employment – application of s 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the applicant failed to give notice of injury as soon as practicable after he became aware of injury – whether the respondent would be prejudiced if notice was treated as a sufficient notice – whether the failure to give notice resulted from ignorance, mistake or any other reasonable cause – notice was not given – no exceptions apply – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Leach v Ross & Anor [2013] QSC 333
The Commonwealth vVerwayen (1990) 170 CLR 394
Re Muras and Department of Defence (1998) AATA 645
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 June 2018
BACKGROUND

The applicant was employed by the Australian Federal Police (“AFP”) between

3 February 1986 and 21 November 1997. The majority of the applicant’s work was as a detective in organised crime and drug related areas.[1] [Publication restricted pursuant to section 35(3)(b) of the Administrative Appeals Tribunal Act 1975].
[1] Exhibit D, Report of Dr Benjamin Duke dated 17 March 2017, p. 3.
As part of this investigation process, the applicant became aware in 1996 that he was the subject of surveillance and “special projects”, which included telephone intercepts, hidden cameras and listening devices.
On 23 May 1997 the applicant’s employment was suspended based on suspicions that he had committed a disciplinary offence, being threats of physical violence against members of ISA and other members of the AFP during a security interview on 8 April 1997. On 21 November 1997, the applicant’s employment was formally terminated.[2]
[2] Exhibit A, T-documents, T6.1.
The applicant lodged a workers’ compensation claim on 8 March 2016 with respect to a “mental injury” caused as a result of his employment with the AFP.[3]
[3] Exhibit A, T-documents, T8.
ISSUE
The issue before this Tribunal relates to a preliminary issue, specifically whether the respondent is entitled to rely on the defence outlined in section 53(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).
CLAIM HISTORY
On 6 May 2016, the respondent made a determination that the applicant’s claim for compensation was excluded by operation of section 53(1)(a) of the SRC Act, as the applicant had not given notice of the injury as soon as practicable after he had become aware of the injury.[4] For completeness, it was also determined that on the balance of probabilities there was insufficient medical evidence to support the applicant’s claim that his employment with the AFP was more than a…

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 Leach and Comcare (Compensation)

Details

AGLC: Leach and Comcare (Compensation) [2018] AATA 1632
Case: [2018] AATA 1632
Decision Date: 12 June 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a claim for mental injury arising out of the applicant's employment. The central dispute revolved around the application of section 53 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), specifically whether the applicant had provided notice of his injury as soon as practicable after becoming aware of it, and if not, whether any exceptions to this requirement applied.

The Tribunal was required to determine three key legal issues: first, whether the applicant had failed to give notice of his injury as soon as practicable after he became aware of it; second, whether the respondent, Comcare, would be prejudiced if the notice provided were treated as sufficient; and third, whether the applicant's failure to give notice resulted from ignorance, mistake, or any other reasonable cause.

The Tribunal considered the applicant's assertion that it took him 19 years to accept he had suffered mental damage and that it was a compensable injury. However, this was found to be inconsistent with the applicant's own claim form, which stated he first noticed symptoms or injury in 1996. The applicant also conceded at the hearing that he first noticed the symptoms or injury in 1996 and likely discussed his stress condition with doctors in 1997. The Tribunal found no evidence of waiver by Comcare and noted that the applicant had adequate notice that Comcare would rely on section 53. Consequently, the Tribunal concluded that the applicant had not given notice as soon as practicable and that the respondent would be prejudiced by this failure, with no cogent evidence satisfying the exceptions under section 53(c) of the Act.

The Tribunal affirmed the decision under review.

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

I have decided that the correct and preferable decision is to affirm the decision under review because the respondent is prejudiced by the applicant not having given notice to the respondent after he became aware of the injury, and there is no cogent evidence that the exceptions in section 53(c) of the SRC Act are satisfied.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent submits that the existence of psychological symptoms and the impact the applicant claims it had on his ability to “think as the normal logical person” should not be considered “any other reasonable cause” because:[52] (a)this does not distinguish the applicant’s situation from any other employee who seeks compensation for a psychological ailment; (b)the applicant has not explained why he was unable to lodge a claim for compensation until 2016; and (c)the applicant was able to lodge a claim with AMP for income benefits in 2014.[52] Exhibit H, Respondent’s Submissions on Preliminary Issue [29]; Respondent’s Submissions on Preliminary Issue dated 11 December 2017 [46]. CONSIDERATION I am required to consider whether the applicant gave notice of his injury as soon as practicable after he became aware of the injury. I must firstly record that anything said at the telephone conference is, under section 34E of the Administrative Appeals Tribunal Act 1975 (Cth), not admissible unless the parties agree to the evidence being admissible at the hearing. A telephone conference is an alternative dispute resolution process and anything said is not admissible as evidence without the consent of both parties; as the respondent has not given consent I am unable to admit evidence of what was said at the telephone conference. I might say that the respondent quite properly brought this matter to my attention during the hearing as this was a matter of concern to the applicant. However, under the law I am unable to have regard to what was said in the telephone conference. There is no evidence before me that the respondent has committed an act of waiver which would attract the principles in The Commonwealth v Verwayen (1990) 170 CLR 394. The documents filed by the respondent prior to the hearing did not contain any undertaking to not rely upon section 53 of the SRC Act. The applicant had adequate notice prior to the hearing that the respondent would rely upon section 53 of the SRC Act. In response to question 23 in his claim form dated 21 February 2016, the applicant stated that he first noticed the “symptoms/injury” in 1996. At the hearing the applicant confirmed that his response to question 23 accurately reflected when he first noticed his symptoms or injury. The applicant also then confirmed that he had never previously lodged a claim for compensation at any time with Comcare and that between 1996 and the date of his claim form he had not notified Comcare of his psychological condition. Having regard to the answer that the applicant gave to question 23 in his claim form and the evidence that the applicant gave at the hearing, I find that the applicant had not given notice to the respondent, being the relevant authority, as soon as practicable after he became aware of the injury in accordance with section 53(1) of the SRC Act. The applicant, in his statement dated 27 September 2017, asserts that “It took me 19 years to accept that I had suffered some mental damage and discovered it was considered an injury. Notice of my injury was given by me to Comcare as soon as I accepted I had suffered an injury and it was a compensable injury”. I do not accept this assertion as it is inconsistent with the answer provided by the applicant in his claim form that he first noticed the “symptoms/injury” in 1996. In cross-examination the applicant conceded that he first noticed the “symptoms/injury” in 1996, and it was likely that he discussed his stress condition with AFP doctors in 1997.