McGuire v Comcare - [2002] AATA 268

DECISION AND REASONS FOR DECISION [2001] AATA 268

ADMINISTRATIVE APPEALS TRIBUNAL Nº W2000/315

Nº W2001/222

GENERAL ADMINISTRATIVE DIVISION

Re: ALEXANDER KYLE McGUIRE

Applicant

And: COMCARE

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             18 April 2002
Place:            Perth

Decision:The Tribunal affirms the decision under review.

(….sgd B.H. Pascoe….)
Senior Member
COMPENSATION — claim for permanent impairment – cervical spine – whether injury in 1951 resulted in permanent impairment – whether impairment result of congenital degenerative changes – whether impairment permanent prior to 1 December 1988
Safety, Rehabilitation and Compensation Act1988 ss.24, 124
Commonwealth Employees' Compensation Act 1930

REASONS FOR DECISION

18 April 2002 Mr B.H. Pascoe, Senior Member

This is an application to review a decision of the respondent dated 15 May 2001 which affirmed a determination of 31 March 2000 that the applicant was not entitled to a lump sum payment for permanent impairment to his neck and cervical spine.
At the hearing the applicant, Mr A. McGuire, was unrepresented. The respondent was represented by Mr P. Quinlay, of counsel. Evidence was given by Mr McGuire, Dr C. Walkley, a specialist in rehabilitation medicine, and Mr S. Brash, an orthopaedic surgeon.
Mr McGuire enlisted in the Australian Army in London on 31 July 1951 and was discharged in West Australia on 30 July 1957. He said that, in September 1951, he was involved in swimming training. Three soldiers had remained behind in the hut. On return from swimming, Mr McGuire said that he realised someone had opened and searched his personal belongings. He did not report this but suspected two of the three soldiers who had been in the hut. Later, when returning to the hut from guard duty unexpectedly, he found the suspects pilfering from other soldiers' belongings. Again, he did not report his findings but suggested to other soldiers that they check for any missing items. Mr McGuire said that a money belt with some cash and badges of some sentimental value disappeared. A small hammer of his was subsequently seen in the possession of one of his suspects and Mr McGuire said that, on asking for its return, he was attacked and thrown to the ground, hurting his shoulder. He said he put up with the problem for some five to six weeks but, on 1 November 1951, when about to go swimming, he was attacked from behind with an arm about his neck, thrown into the air and landed on his head. He said he had some paralysis in his arms and legs and could not stand without assistance. He was taken to the Regimental Aid Post where he was placed on a stretcher with a heat lamp on his neck. An ambulance then conveyed him to Moorbar Hospital where he stayed overnight under observation for a suspected fracture of the neck. The next day he was taken to Concorde Repatriation General Hospital (Concorde). Mr McGuire said that he was placed on a slanted bed with traction to his head and neck. He…

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.

Keep reading for free

Create a free CaseChat account to read McGuire v Comcare and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] AATA 268
Decision Date: 18 April 2002

CaseChat Overview and Summary

McGuire brought an action against Comcare, seeking compensation for permanent impairment resulting from injuries sustained in 1951. The case was heard by the Federal Court of Australia, which was required to determine whether the injury from 1951 resulted in permanent impairment and whether this impairment was due to congenital degenerative changes or had already been permanent prior to 1 December 1988.

The primary legal issues before the court were the nature and origin of the impairment, the definition of "permanent impairment" under the relevant legislation, and the application of the statutory provisions concerning injuries that were permanent prior to a specified date. The court had to assess whether the impairment was attributable to the 1951 injury or to other factors, particularly congenital degenerative changes, and whether it was permanent prior to 1 December 1988.

The court concluded that the impairment was not a result of the 1951 injury but rather due to congenital degenerative changes. Furthermore, the court found that the impairment was already permanent prior to 1 December 1988, which precluded the applicant from receiving compensation under the applicable statutory provisions. Consequently, the court dismissed the applicant's claim for compensation.

The court ordered that the applicant's claim be dismissed in its entirety, with no orders for costs.

Orders