McIntyre v Comcare

[1998] FCA 124

FEDERAL COURT OF AUSTRALIA

COMMONWEALTH EMPLOYEES’ COMPENSATION - appeal from Administrative Appeals Tribunal - applicant awarded compensation for 1986 injury in common law proceedings - applicant made subsequent claim for compensation in respect of 1989 injury under the Safety Rehabilitation and Compensation Act 1988 (Cth) - Tribunal found that the applicant had already received damages “in respect of” the 1989 injury as a part of the “matrix of facts” relating to the 1986 claim - whether Tribunal misdirected itself as to the proper question to be answered - distinction between damages in “respect of injury” and for incapacity

Safety Rehabilitation and Compensation Act 1988 (Cth), s 48

BERNARD MCINTYRE v COMCARE
NG 310 of 1997

MADGWICK J
12 FEBRUARY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 310 of 1997

BETWEEN:	BERNARD MCINTYRE APPLICANT
AND:	COMCARE AUSTRALIA RESPONDENT
JUDGE(S):		MADGWICK J
DATE OF ORDER:		12 FEBRUARY 1998
WHERE MADE:		SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The proceedings be remitted to the Administrative Appeals Tribunal to be determined in accordance with law.

1. The respondent pay the applicant's costs of the Appeal to the Court and of the Notice of Motion before the Administrative Appeals Tribunal.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 310 of 1997

BETWEEN:	BERNARD MCINTYRE APPLICANT
AND:	COMCARE RESPONDENT

JUDGE(S):	MADGWICK J
DATE:	12 FEBRUARY 1998
PLACE:	SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:   This matter raises a narrow but interesting question.  It arises in an appeal from the Administrative Appeals Tribunal constituted by Deputy President McMahon.  The AAT had before it an application to review a reconsidered decision of the respondent given on 13 November 1995.  The primary decision-maker had rejected the applicant's claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) lodged by him on 26 June 1995 in respect of "back strain (sciatica) pain, 11 March 1989 and 25 May 1989 due to nature and conditions of employment".

Mr McIntyre, the applicant, had been an assistant cook employed by the Department of Defence.  He had at various times asserted four injuries to his back in the course of his employment, occurring respectively on 2 August 1986, 22 June 1987, 11 March 1989 and apparently 25 May 1989.  In 1989 the applicant commenced proceedings in the District Court of New South Wales against the Department of Defence alleging negligence by the defendant in respect of his 1986 asserted injury.  The proceedings were transferred to the Supreme Court and the defendant was renamed as the Commonwealth of Australia.

The case was ultimately settled on 17 May 1995 by payment of a sum to Mr McIntyre such that the inference arises that he was actively pursuing a claim at least for partial incapacity for work extending past 11 March 1989.  The medical evidence then available to Mr McIntyre and his solicitors, Messrs Walsh and Blair, was that the incapacity following the incident of 11 March 1989 was attributable to…