Lonergan v Comcare

Case [2005] FCA 377

FEDERAL COURT OF AUSTRALIA

Lonergan v Comcare [2005] FCA 377

WORKERS’ COMPENSATION – entitlement to compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – incapacity for work arising after retirement – whether compensation should be calculated under s 19 or s 21 of the Act – whether lump sum benefit under superannuation scheme should be taken into account

WORDS AND PHRASES – “being incapacitated for work as a result of an injury”

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 19, 21

Huckel v Comcare (1994) 35 ALD 251 cited
Re Hammerton and Comcare (1995) 21 AAR 204 cited
Archer v Comcare [2000] FCA 1296 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 cited

BARRY MAXWELL LONERGAN V COMCARE
TAD 23 of 2004

HEEREY J
8 APRIL 2005
HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 23 OF 2004

On Appeal from the Administrative Appeals Tribunal

BETWEEN:

BARRY MAXWELL LONERGAN
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

8 APRIL 2005

WHERE MADE:

HOBART

THE COURT ORDERS THAT:

  1. The appeal be allowed.
    2. The respondent pay the applicant’s costs of the appeal.
    3. The determination of the Administrative Appeals Tribunal dated 25 June 2004 be set aside and in lieu thereof it be ordered that the applicant’s compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) be calculated in accordance with s 19 of that Act.

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

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 23 OF 2004

BETWEEN:

BARRY MAXWELL LONERGAN
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

HEEREY J

DATE:

8 APRIL 2005

PLACE:

HOBART

REASONS FOR JUDGMENT

  1. This appeal from the Administrative Appeals Tribunal raises the question of law whether the applicant’s compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) should be calculated under s 19 or s 21 of the Act. The Tribunal’s reasons at times refer to s 21A, but it seems the potentially relevant alternative to s 19 must be s 21, which deals with persons like the applicant who receive a lump sum benefit under a superannuation scheme, rather than s 21A (persons receiving both a pension and a lump sum benefit).

    The applicant’s claim

  2. The applicant was born in 1943.  Since 1985 he had been employed by Comcare as a driver.  On 27 July 1993 he sustained injuries to his bowel in a motor car accident during the course of his employment. 

  3. Following the accident and surgery the applicant returned to work.  But as a result of his injuries he was unable to work for various periods totalling 53.8 weeks.

  4. On 12 September 1997 the applicant accepted voluntary redundancy.  At that time he was, in the words of the respondent’s statement of facts and contention before the Tribunal, “undertaking his normal duties”.  His most recent period off…

Continue reading Lonergan v Comcare

Sign in free to access the full text

Details
AGLC
Lonergan v Comcare [2005] FCA 377
Case
[2005] FCA 377
Decision Date

CaseChat Overview and Summary

The case of Lonergan v Comcare involved the interpretation of sections 19, 20, 21, and 21A of the Safety, Rehabilitation and Compensation Act 1988 (Cth), concerning the compensation entitlement of a retired employee who had been injured in the course of their employment. The matter was appealed from the Administrative Appeals Tribunal to the Federal Court of Australia. The primary issue before the Court was whether the applicant was entitled to compensation calculated under section 19 or section 21 of the Act, given his incapacity for work and subsequent retirement. The Court had to determine if the applicant's incapacity for work was relevant at the time of his retirement and if the concept of incapacity should be construed broadly under the Act.

The Court held that the concept of incapacity under the Act was not limited to the actual date of retirement but should be construed in a broad sense, considering the applicant's ability to work in suitable employment. The Court found that the applicant was incapacitated within the meaning of the Act because it was unlikely he would have been able to find suitable work had he not gone into his own business at the time of his compulsory retirement. The Court further held that section 21A was enacted to ensure that individuals would be treated equally regardless of the timing of their incapacity, provided it existed at some time after their retirement. Consequently, the Court found that the applicant's entitlement to compensation remained due to his inability to obtain suitable employment.

The Court allowed the appeal, set aside the decision of the Administrative Appeals Tribunal, and ordered that the applicant's compensation be calculated in accordance with section 19 of the Act. Additionally, the Court ordered the respondent to pay the applicant's costs of the appeal. This decision clarified the interpretation of incapacity in the context of the Act and ensured that the applicant's compensation entitlement was assessed correctly based on his inability to secure suitable employment following his retirement.

Orders

Orders of the court

1.

The appeal be allowed.

2. The respondent pay the applicant’s costs of the appeal.

3. The determination of the Administrative Appeals Tribunal dated 25 June 2004 be set aside and in lieu thereof it be ordered that the applicant’s compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) be calculated in accordance with s 19 of that Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY J
Superannuation amount in effect means an amount corresponding to the Commonwealth’s contribution. It is defined in s 4 to mean: “(a)if the scheme identifies a part of the pension or lump sum as attributable to the contributions made under the scheme by the Commonwealth, Commonwealth authority or licensed corporation–the amount of that part; or (b)in any other case–the amount assessed by the relevant authority to be the part of the pension or lump sum that is so attributable or, if such an assessment cannot be made, the amount of the pension received by the employee in respect of that week or the amount of the lump sum, as the case requires.”The Tribunal’s decision The Tribunal, after reciting the applicant’s history, noted the argument put on his behalf that he was not incapacitated for work at the time of his retrenchment and therefore was entitled to payments calculated pursuant to s 19. According to the Tribunal, the aplicant’s counsel had submitted that there must be a causative link between incapacity and retirement before s 21A (sic) applied or alternatively he must have been incapacitated for work at the date of his retirement. I should mention at this stage that the first of these arguments was not pressed on the appeal. The Tribunal noted the applicant’s evidence in relation to his periods of incapacity for work due to the accident and his statement that at the time of his retirement he was carrying out his normal duties. The Tribunal recorded the respondent’s submissions as follows:“11. The respondent argued that the concept of incapacity as used in Sections 20, 21 and 21A must be understood within the context of the Act. He contended that the Act focuses on "incapacity" in terms of assessment of a person’s ability to work in suitable employment and the availability of suitable employment. An incapacity whenever occurring, which entitles a person to compensation after retirement is to be paid according to the relevant formula.12. It was submitted on behalf of the respondent that Section 19 deals with an entitlement to compensation for an employee who is incapacitated for work at any time prior to retirement. The later sections 20, 21 and 21A do not come into play until such time as the retirement has occurred. They apply to people who retire and are entitled from time to time to compensation for each week after their retirement for which they are incapacitated. Sections 20, 21 and 21A apply only to a former employee for the purposes of a continuing entitlement but by virtue of his or her retirement has gained an entitlement to one or other forms of superannuation set out in those sections. The term "being incapacitated" is used in the sense of following retirement.” After rejecting the argument (not now advanced) that there must be a causative link between incapacity and retirement, the Tribunal continued:“15. The second submission put by the applicant was that he was not incapacitated at the date of his retirement, therefore, section 21 could not apply to his case. The Tribunal rejects the applicant’s second submission and accepts the concept of incapacity in the Act as put forward by the respondent. Incapacity for the purposes of Commonwealth legislation involves all sorts of additional doctrines and is more concerned with a person’s ability to work in suitable employment. If a person does not have an ability to work in suitable employment or suitable employment is not available, then their lack of ability to obtain suitable employment entitles them to ongoing compensation.16. The Tribunal finds as a question of fact that had the applicant not gone into his own business at the time of his compulsory retirement it is unlikely that he would have been able to find suitable work and would have been deemed to be incapacitated for the purposes of the Act. The word incapacity in this legislation should be construed in its broad sense and not limited to the circumstance of the actual date of retirement. It is on this basis, we find that the present applicant was incapacitated within the meaning of s4 (a)[sic-presumably s 4(9)(a)] of the Act. The applicant’s entitlement to compensation remains because of his inability to obtain suitable employment.17. The Tribunal believes that the purpose of section 21A as enacted by the Commonwealth Parliament in 1992 was to ensure that people would be treated in the same manner despite the circumstances of the timing of their incapacity provided it existed at some time after their retirement.18. This purpose can be gleaned from the report in Hansard at P2749, attached to the second reading speech as part of the debate in Parliament, in which the Member for Barker observed:‘The Bill contains provisions which, apart from eliminating simultaneous payments for both compensation and superannuation also limits the amount of compensation payable under the scheme’.”Finding of fact

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.