Maynard and Comcare - [2000] AATA 1084

CATCHWORDS – COMPENSATION – applicant involved in serious car accident during period of rest and recreation – whether injuries arose out of or attributable to applicant's employment in the Army – whether applicant travelling from place of residence to place of work – whether accident occurred during ordinary recess of employment - decision affirmed.

Administrative Appeals Tribunal Act 1975 – ss 25, 37
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 5, 6, 14
Workers' Compensation Act 1926 (NSW) – s 6

Comcare Australian (Defence) v O'Dea (1997) 150 ALR 318; (1997) 26 AAR 252
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; (1964) 38 ALJR 64; [1964] ALR 1031
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; (1951) 25 ALJR 616
Re Kelly and Australian Telecommunications Corporation (1991) 14 AAR 198
The Commonwealth v Wright (1956) 96 CLR 536; (1956) 30 ALJR 592

DECISION AND REASONS FOR DECISION [2000] AATA 1084

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S1996/361
GENERAL ADMINISTRATIVE DIVISION      )

Re MICHAEL PHILIP MAYNARD

Applicant

And COMCARE

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)
Dr J T B Linn (Member)

Date: 8 December, 2000

Place: Adelaide

Decision:The Tribunal affirms the decision of the respondent dated 12 December, 1996.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 30 December, 1996, the applicant, Mr Michael Philip Maynard, applied for review of a reviewable decision of the respondent, Comcare, dated 12 December, 1996. In that decision, Comcare, affirmed its earlier decision dated 14 February, 1991 that the injury he suffered on 1 April, 1990 is not compensable under the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

At the hearing, Mr Maynard represented himself with the assistance of Mr Gary Sawyer, Ms Carol Martinella and Mr Justin Boxer. Comcare was represented by Mr Lenczner of counsel. The documents admitted pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("AAT Act") ("T documents") were admitted in evidence together with Mr Maynard's service classification record, extracts from The Stress Protection Plan: How to Stay Healthy under Pressure, Leon Chaitow, 1992; Falling Apart. Living with Stress Breakdown Michael Epstein and Sue Hosking, 1989; Mental Health Disorders Source Book, Karen Bellenir (ed), 2nd edition; a two page statement by Mr Maynard titled "Applicant 596/316"; pages one and three of a typed statement by Mr Maynard dated 19 February, 2000; a statement and three photographs related to Week 10 of the 12 week Basic Training Course; Mr Maynard's invalidity Retirement from the Defence Force form dated 14 March, 199; and 29 pages of photographs of Mr Maynard during and after his Basic Training at Kapooka. Oral evidence was given by Mr Maynard in support of his own case. Written statements were made, and oral evidence was given, by Mr Kenneth Doubleday, Mr David Evans, Mr Jim Evans, Mr Christopher Gatehouse and Mr Fontalvo in support of the case presented on behalf of Comcare.

THE…

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 Maynard and Comcare

Details

AGLC: Maynard and Comcare [2000] AATA 1084
Case: [2000] AATA 1084
Decision Date: 8 December 2000

CaseChat Overview and Summary

In the case of Maynard and Comcare, the applicant, Michael Philip Maynard, sought compensation from Comcare for injuries sustained in a car accident during a rest and recreation period while he was a member of the Australian Defence Force. The Administrative Appeals Tribunal (AAT) was tasked with reviewing Comcare's decision to deny compensation under the Safety, Rehabilitation and Compensation Act 1988. The key issue before the Tribunal was whether Maynard's injuries arose out of or in the course of his employment. The Tribunal examined whether Maynard's accident occurred during an ordinary recess of his employment or while he was travelling between his place of residence and place of work. Based on the evidence presented, the Tribunal found that Maynard was on weekend leave and had gone into Wagga to socialise and meet a new girl. The socialising and meeting the girl were not activities required or authorised by his employment. The Tribunal concluded that Maynard's accident did not occur while he was on duty or while travelling between his place of residence and place of work. Additionally, the period between the end of his rest and recreation and the start of his course was not considered an ordinary recess but rather a break in his employment. Consequently, the Tribunal affirmed Comcare's decision that Maynard's injury did not arise out of or in the course of his employment, and thus he was not entitled to compensation.

Orders