Maganga and Comcare

[2007] AATA 1526

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1526

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2005/192

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		FERDINAND MAGANGA

Applicant

And   COMCARE

Respondent

DECISION

Tribunal

J.W. Constance, Senior Member

Dr P Wilkins MBE, Member

Date6 July 2007

PlaceCanberra

Decision

1.     The decision of Comcare made 9 June 2005 is set aside.

2.     The matter is remitted to Comcare for reconsideration in accordance with the direction that Mr Maganga’s claim for compensation dated 6 December 2004 be considered on the basis that on 29 November 2004 Mr Maganga suffered an injury to his left knee whilst travelling between his place of residence and his place of work as an employee of the Department of Health and Ageing..

…................................................

J.W Constance, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – injured whilst walking to work- ‘journey claim’- Comcare rejected liability for the claim - Whether knee injury occurred whilst walking to work

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 6

Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206

Piddington v Bennett & Wood Proprietary Limited (1940) 63 CLR 533

Fried and Others v National Australia Bank and Others (2000) 175 ALR 194

REASONS FOR DECISION

6 July 2007
J.W Constance, Senior Member
Dr P. Wilkins MBE, Member

INTRODUCTION

1.      Mr Maganga has applied for a review of a decision of Comcare made 22 August 2006 which denied that Comcare was liable to compensate him for an injury to his left knee.  Mr Maganga claimed that he suffered the injury as he was walking to work on the morning of 29 November 2004.  At the time he was an employee of the Department of Health and Ageing.

2. Under section 6 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), an injury shall be treated as having arisen in the course of employment if it was sustained whilst the employee was travelling between his residence and his place of employment.[1]  It is not in issue that Mr Maganga injured his knee on 29 November 2004.  The only issue is whether he sustained the injury as he was travelling to work.

[1] This section has now been repealed by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), no. 54, 2007.

3.      For the reasons which follow we are satisfied that Mr Maganga did suffer the injury to his knee in the circumstances claimed.  The decision under review will be set aside and the matter will be remitted to Comcare for further consideration.

THE EVIDENCE

Mr Maganga’s evidence

4.      Mr Maganga gave the following account of the events of 29 November 2004

5.      At approximately 8.15am Mr Maganga was walking to work, as was his usual practice.  As he was walking along the footpath at the corner of Brewer Street and Corinna Street in Woden (a Canberra suburb) he bumped into a fence which was in part on the footpath.  The fence surrounded the site of a building which had recently been destroyed by fire.

6.       As a result of bumping into the fence Mr Maganga fell over and injured his left knee.  He did not suffer any cuts or abrasions, but shortly after he fell, his knee (which he had injured previously) began to swell.

7.      Mr Maganga was helped to his feet by a passer-by.  He “composed” himself and then called his wife and requested that she come to pick him up in their car.  Mr Maganga produced records of his mobile phone calls[2] which show that a call was made from his mobile to what he stated was his wife’s mobile at 8.30 am that morning.  The call originated in Woden.

[2] Ex.A1.

8.      The place where Mr Maganga fell is immediately across Brewer Street from the building in which the physiotherapist who was treating Mr Maganga for his previous knee injury has his practice.  The location of the practice of Dr Ooi, Mr Maganga’s general practitioner, was very close by also.

9.      Having composed himself Mr Maganga crossed Corinna Street and waited in or near a coffee shop for his wife to arrive.  Sometime before 9am Mrs Maganga arrived and drove Mr Maganga to their home which was nearby.  Once he returned home Mr Maganga telephoned and made an appointment to see Dr Ooi later that day.  Mr Maganga said that he did not go directly to Dr Ooi’s rooms after the fall as it was too early to do so.  The mobile phone records show a call from Mr Maganga’s mobile to Dr Ooi’s rooms at 9.21 that morning.

10.     Mr Maganga consulted Dr Ooi who arranged for him to receive treatment from his physiotherapist.  Mr Maganga attended his physiotherapist the same day.  The notes of Woden Physiotherapy[3] confirm his attendance and record that “this morning on way to work fell down on Corinna Street”.

[3] Ex. A5.

Documentary evidence

11.     In addition to the documents already referred to, the following documents are in evidence.

1)    A statement prepared by Mr Maganga on 29 November 2004 at the request of Dr Ooi.[4] In describing what had happened to him Mr Maganga stated that he “was crossing Corinna Street, fell down to the left side of my body and injured my left knee…… one person helped me to stand up as it was in the middle of the road and I told him I will be okay after resting near a coffee shop but knee started swelling immediately."

2)    A medical certificate issued by Dr Ooi stating that he examined Mr Maganga on 29 November 2004 and that in his opinion he was suffering from acute inflammation of his left knee. [5]  Dr Ooi recorded that “based on the information available to me, this was caused by a fall in Corinna Street Woden”.

3)   Hazard/Incident Report completed by Mr Maganga for his employer on 6 December 2004 when he returned to work after the incident.[6]  In this report Mr Maganga described the incident as follows: “was crossing Corinna Street, must have clipped/ not looked properly (near former NHMRC) which burned down fell down to the left side of my body.”  The reference to NHMRC was a reference to the site on the corner of Corinna Street and Brewer Street to which Mr Maganga referred in giving evidence.

4)   A Claim for Workers’ Compensation form completed by Mr Maganga on 6 December 2004 [7] in which he described the location of the incident as “Corinna Street…….about to cross the road, tripped.”

5)   A Statutory declaration by Mrs Margarite Maganga dated 15 April 2006.[8]  Mrs Maganga stated “that on 29 November 2004, after 8:30 AM, I rang my husband's office to inform them that he had slipped and fallen over in Corinna Street Phillip, on his way to work.  He had rung me to go and collect him from Corinna Street and take him to see his Medical Practitioner." 

6)   Two statements by Mr Maganga which were filed in these proceedings.[9] These statements are consistent with his evidence as to the use of his mobile to call Mrs Maganga and the making of his appointment with Dr Ooi.

[4] Ex. R1.

[5] Ex. A2.

[6] Ex.A3.

[7] Ex. A4.

[8] Ex. A6.

[9] Exs R3 & R4.

EVALUATION OF THE EVIDENCE

12.     Comcare argued that we could not be satisfied on the balance of probabilities that Mr Maganga was injured as he was walking to work as he claimed.  Counsel referred us to apparent inconsistencies in his evidence.  In particular she referred to the time which elapsed between his leaving home and the time of the fall (approximately 10-15 minutes), the written statement made in Dr Ooi’s surgery which suggested that Mr Maganga had already attended for physiotherapy and the delay of approximately fifty minutes in calling Dr Ooi’s surgery to make an appointment.

13.      These incidents do not disclose an inconsistency such as to cause us to doubt the account given by Mr Maganga.  The time of the fall was given by Mr Maganga as an estimate and we do not agree that it was so great as to raise doubt regarding his veracity.

14.     Mr Maganga was uncertain as to the timing of his medical and physiotherapy appointments and may have been mistaken as to their sequence. Alternatively he may have been referring to his physiotherapist’s previous advice in relation to the earlier injury to his knee i.e. to apply ice.  Mr Maganga gave evidence that he applied ice to his knee upon returning home after the incident.

15.     Mr Maganga said that he believed that Dr Ooi’s practice did not open until 9am or later and for this reason he did not call until the time he did.  He also said that because the incident happened early in the morning he did not go directly to his doctor or physiotherapist even though their practices were close by.  We accept these explanations.

16.     We also gave consideration to the fact that in the statement made by Mr Maganga on the day of the incident (exhibit R1), he referred to the fall having occurred as he was crossing Corinna Street.  He also referred to his being assisted to stand “as it was in the middle of the road”.  On the other hand his description in his claim form (exhibit A4) referred to his falling as he was “about to cross the road.”  Taking into account that English is a second language for Mr Maganga these variations in his description of the incident do not cause us to reject his evidence.

17.     Counsel for Comcare also sought to rely on Mr Maganga’s failure to comply with a direction to file a witness statement by Mrs Maganga concerning telephone calls received by her relating to this incident. Comcare argued that as a consequence of this failure we should not accept the evidence of Mr Maganga that he telephoned Mrs Maganga shortly after the incident.  We do not accept this argument.  Comcare did not challenge Mr Maganga’s evidence that the telephone number called from his mobile at 8.30 am on 29 November 2004 was that of Mrs Maganga’s mobile.  Further the statement of Mrs Maganga confirming that the call was made was admitted with the consent of Comcare and without Mrs Maganga being required for cross-examination.

18.     During the hearing we rejected the tender of some of the documents upon which Comcare sought to rely.  In each case Counsel for Mr Maganga objected to the tender.

19.     Comcare sought to have the Tribunal take into evidence a number of documents (including several medical reports of examinations of Mr Maganga) which it was argued would show that Mr Maganga had made inconsistent statements regarding an injury or injuries he had suffered in 1997.  The contents of these documents were not relevant to the issue in dispute in this matter.  The documents were not claimed to show that he had made an inconsistent statement in giving his evidence before us. Comcare sought to rely on them to impugn the credit of Mr Maganga before us by showing that he had made inconsistent statements previously.  Counsel for Comcare expressly disavowed any claim that the documents were sought to be tendered in support of an argument that Mr Maganga was a ‘notorious liar” within the exceptions referred to by Latham CJ in Piddington v Bennett & Wood Proprietary Limited (1940) 63 CLR 533, to which we shall refer. We rejected the tender of these documents on the ground that procedural fairness required that Comcare not be allowed to contradict Mr Maganga’s answers to questions which went only to his credit.

20.     Whilst the rules of evidence do not apply in the Tribunal [10] they do have a role to play in the context of the Tribunal’s obligation to afford procedural fairness to the parties: Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206.

[10] Section 33 of the Administrative Appeals Tribunal Act 1975.

21.     In Piddington at 545, Latham CJ said:

“Any witness may be cross-examined for the purpose of discrediting him.  But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness’s answers cannot be contradicted by other evidence except in certain exceptional cases.  Exceptions to the rule at common law are that after cross-examination of his opponent’s witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they had previously made statements inconsistent with the evidence."

22.     The above is a clear statement by the High Court as to what is required in this case for the Tribunal to meet its obligation to provide procedural fairness to both parties. 

23.     Comcare also sought to have access to a file produced to the Tribunal on summons.  The file was produced by Mr Maganga’s former solicitors and was said to contain documents relating to an injury suffered by Mr Maganga in 1997.  Counsel for Comcare acknowledged that her client wished to inspect this file to ascertain if it disclosed that Mr Maganga had made inconsistent statements in relation to the 1997 claim.  The application for access to the file was refused.  Apart from the fact that it would have been unfair to admit such material for the reasons already stated, it was inappropriate for Comcare to be permitted to go on a fishing expedition to ascertain what the file contained, particularly when the documents sought (if they existed) were sought only to impugn the credit of a witness: Fried and Others v National Australia Bank and Others (2000) 175 ALR 194 at 200. There was no suggestion that the file may contain material relevant to the determination of the factual issue before us.

24.     Having observed and heard Mr Maganga give his evidence we are satisfied that he was a witness who gave his evidence honestly and to the best of his recollection. There may have been some confusion as to the sequence of certain events but his evidence that he injured his knee as he was walking from his home to his workplace was clear. It was apparent at all times that the issue before the Tribunal was whether the injury to Mr Maganga’s knee occurred on his way to work; nevertheless contrary allegations (such as that the injury occurred at home) were not put to him and consequently did not have the opportunity to assess Mr Maganga’s veracity when his truthfulness was under direct challenge.  We accept Mr Maganga’s evidence and on this basis we find that he was injured at the time and in the manner he described. We are satisfied of these facts on the balance of probabilities.

DECISION

25.     The decision of Comcare made 9 June 2005 is set aside.

26.     The matter is remitted to Comcare for reconsideration in accordance with the direction that Mr Maganga’s claim for compensation dated 6 December 2004 be considered on the basis that on 29 November 2004 Mr Maganga suffered an injury to his left knee whilst travelling between his place of residence and his place of work as an employee of the Department of Health and Ageing..

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr P. Wilkins MBE, Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date of Hearing  18 June 2007

Date of Decision  6 July 2007
Counsel for the Applicant               Stuart Pilkington
Solicitor for the Applicant               Pamela Coward & Associates
Counsel for the Respondent          Cathy Dowsett
Solicitor for the Respondent         Phillips Fox