Lee and Comcare - [2003] AATA 281

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 281
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No A2000/482
  )          No A2002/200

GENERAL ADMINISTRATIVE DIVISION )

Re FIONA MICHELLE LEE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M D Miller, AO, Member
Date27 March 2003
PlaceCanberra

Decision The tribunal affirms the decisions under review. The respondent is not liable to pay costs.
...................[Sgd]..................
Senior Member

CATCHWORDS
WORKERS' COMPENSATION – Death of employee – claim by dependants – death by suicide – employee suffered from recurrent major depression – whether employment made material contribution to employee’s disease
Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“ailment”, “dependant”, “dependent”, “disease”, “injury”), 7(4), 14(1), 17(1), (2), (7).
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Hawkins v Comcare (2001) 34 AAR 383
Commonwealth v Beattie (1981) 35 ALR 369
REASONS FOR DECISION

27 March 2003 Mr M J Sassella, Senior Member
Dr M D Miller, AO, Member

APPLICATION
N2000/482
1.      Fiona Michelle Lee (“the applicant”) applied to the Administrative Appeals Tribunal (“the tribunal”) on 20 December 2000 on behalf of her deceased husband, Michael Jeffrey Lee (“the deceased”, “the employee”) for review of a decision dated 8 March 2000 (ex TD2/T33) which was affirmed on review by a Comcare (“the respondent”) delegate on 7 November 2000 (ex TD2/T47). The decision was to reject a claim for compensation lodged by the deceased with the respondent on 30 October 1999 before he died (ex TD2/T10). The claim referred to the employee’s depressive illness.
N2002/200
2. Fiona Michelle Lee has also applied to the tribunal for review of a decision by a delegate within the respondent agency dated 30 January 2002 (ex TD1/T4), a decision affirmed on review on 14 May 2002 (ex TD1/T14). The decision was to reject a claim by Mrs Lee for compensation under s 17 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[1] in relation to the death of her husband, the employee, who died on 3 April 2000.
[1] tribunal convened a hearing in these matters in Canberra on 22 and 23 January 2003. Mr Mark O’Neill, a solicitor, represented Mrs Lee. Ms Lorraine Walker, a barrister, represented Comcare. The tribunal heard oral evidence from Ms N F Reay, mother of the deceased, the applicant, Mr W T Gillard, the deceased’s father-in-law, Mr C O’Neill, the deceased’s brother-in-law, Mr R L Rodgers, the deceased’s former work supervisor, Dr J Saboisky, a psychiatrist and Dr R Tym, another psychiatrist.
4.      The tribunal received into evidence and marked as exhibits the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T27) provided by the respondent for application A2002/200.
Exhibit TD2 - Section 37 Statement and associated documents (exhibits T1 – T47) provided by the respondent for application A2000/482.
Exhibit A1 – Applicant’s statement of facts and contentions, 20 September 2002.
Exhibit A2 – Statement by Ms N F…

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 Lee and Comcare

Details

AGLC: Lee and Comcare [2003] AATA 281
Case: [2003] AATA 281
Decision Date: 27 March 2003

CaseChat Overview and Summary

The applicant, Lee, sought a determination from the Administrative Appeals Tribunal (AAT) that the respondent, Comcare, was liable to pay compensation for the death of the applicant's husband, who died by suicide. The husband had a history of recurrent major depression and had been an employee of the Commonwealth when he died. The husband had made a claim for workers’ compensation in relation to his depression, which was dismissed. The husband’s estate sought compensation, claiming that the husband's employment made a material contribution to his disease. Comcare disputed this claim, and the matter was referred to the AAT for review.

The legal issues the AAT was required to determine were whether the husband's employment made a material contribution to his disease and whether the husband's disease was an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988. The AAT had to consider the husband's psychiatric history, his employment, and whether there was a causal link between the two. The AAT also had to consider whether the husband's death was an injury within the meaning of the Act.

The AAT found that the husband's employment did not make a material contribution to his disease. The AAT found that the husband's psychiatric history was well established and that his employment did not aggravate or accelerate his condition. The AAT also found that the husband's death was not an injury within the meaning of the Act. The AAT noted that the husband's death was not caused by an accident arising out of or in the course of employment, as required by the Act. The AAT affirmed the decisions under review, finding that Comcare was not liable to pay compensation.

The tribunal affirmed the decisions under review and found that the respondent was not liable to pay costs. The AAT found that the applicant had not established that the husband's employment made a material contribution to his disease or that his death was an injury within the meaning of the Act. The AAT's decision was based on a thorough consideration of the evidence and the applicable law.

Orders

Orders of the court

The tribunal affirms the decisions under review. The respondent is not liable to pay costs.

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		FIONA MICHELLE LEE