Perry and Comcare - [2004] AATA 289

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 289
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/624

GENERAL ADMINISTRATIVE DIVISION
)

Re ROBERT JAMES PERRY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Ms J Cowdroy, Member
Date19 March 2004
PlaceBrisbane

Decision
The Tribunal sets aside the decision under review and substitutes its decision that:

(i) the applicant is entitled to compensation for schizophrenia and alcoholism pursuant to Section 124 of the Safety, Rehabilitation and Compensation Act 1988;

(ii)     such incapacity is partial in that the applicant suffered an 80 per cent loss of capacity to work;

(iii)      such compensation relates to the period 3 April 1976 until 2 April            1978.

....................(Sgd)......................
J Cowdroy
  Member

CATCHWORDS
COMPENSATION – schizophrenia – psychiatric injury – Commonwealth not prejudiced by failure to lodge claim within time limit – reasonable cause for failure to lodge claim within time limit – acceleration of condition by external stimuli of accident – accident continued as contributing factor to presence of schizophrenia – partial incapacity – decision set aside.
Compensation (Commonwealth Government Employees) Act 1971 ss 27, 29, 54
Safety, Rehabilitation and Compensation Act 1988 ss 124
Casarotto v Australian Postal Commission (1989) 86 ALR
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Federal Broom Co Pty Ltd v Semlitch (1964) 100 CLR 626
Johnson v Commonwealth (1982) 43 ALR 599
REASONS FOR DECISION

19 March 2004 Ms J Cowdroy, Member

Hearing
1.      This decision relates to a hearing in Brisbane on 3 and 4 March 2003. Upon hearing the oral evidence, the matter was adjourned and written submissions from the parties were received on 30 May 2003.
2.      The Tribunal heard evidence from the applicant, Mrs Perry, Dr Hayter, Dr Persley and Dr Petroff, who the respondent made available for cross-examination. The T documents were admitted in evidence as Exhibit 1, as well as the following material:
Exhibit 2Letter from Australian Legal Aid Office dated 4 November 1977 and letter from June Marlene Perry to Dr Petroff

Exhibit 3        Statement of June Perry undated
Exhibit 4        Report of Dr Gary Persley dated 10 September 2001
Exhibit 5        Report of Dr Gary Persley dated 14 November 2001
Exhibit 6        Clinical notes of Dr Petroff
Exhibit 7        Affidavit of Lynette Jane Rieper sworn 28 February 2003

3.      The matter was decided on the basis of the exhibits, the oral evidence and the written submissions of the parties, relevant case law and legislation.
Background
4.      The following facts serve by way of background to the hearing and are not in dispute. The applicant was born on 22 September 1941. He enlisted in the Army Reserves in 1975 and was discharged in 1976. He had previously served with the Citizens Military Forces for two years from 1960 to 1962.
5.      In 2001 the applicant lodged a claim for compensation and rehabilitation in respect of a psychiatric injury, which he attributed to a fall from an Army jeep whilst on exercise on 3 April 1976 (“the accident”). 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.

Continue reading Perry and Comcare

Details

AGLC: Perry and Comcare [2004] AATA 289
Case: [2004] AATA 289
Decision Date: 19 March 2004

CaseChat Overview and Summary

In the case of Perry against Comcare, the Federal Circuit Court was tasked with determining whether the applicant was entitled to compensation for psychiatric injuries, specifically schizophrenia, under the Compensation (Commonwealth Government Employees) Act 1971. The dispute arose from the applicant's failure to lodge the claim within the statutory time limit and the argument that the Commonwealth had not been prejudiced by this delay. Additionally, the case considered whether there was reasonable cause for the delay and if the accident in question was a contributing factor to the development of the schizophrenia.

The primary legal issues before the court involved interpreting the statutory provisions regarding time limits for claims and the reasonable cause exception, as well as determining the extent to which the accident had contributed to the applicant's condition. The court needed to decide if the Commonwealth had been prejudiced by the late claim and whether there was a reasonable explanation for this delay. It was also necessary to ascertain if the accident was a contributing factor to the onset of the schizophrenia, and if so, how this should affect the compensation awarded.

The court examined the statutory provisions and previous case law, including Johnson v Commonwealth, to understand the requirements for late claims and reasonable cause. It concluded that the Commonwealth was not prejudiced by the late claim and that there was reasonable cause for the delay. The court found that the external stimuli of the accident had accelerated the development of the applicant's schizophrenia, which continued to contribute to the condition. Therefore, the court held that the applicant was entitled to compensation for the partial incapacity resulting from the psychiatric injury.

The court set aside the decision under review and substituted its decision that the applicant was entitled to compensation for schizophrenia and alcoholism under Section 124 of the Safety, Rehabilitation and Compensation Act 1988. The court determined that the applicant suffered an 80 per cent loss of capacity to work and that the compensation should relate to the period from 3 April 1976 until 2 April 1978.

Orders

Orders of the court

The Tribunal sets aside the decision under review and substitutes its decision that:

(i) the applicant is entitled to compensation for schizophrenia and alcoholism pursuant to Section 124 of the Safety, Rehabilitation and Compensation Act 1988;

(ii) such incapacity is partial in that the applicant suffered an 80 per cent loss of capacity to work;

(iii) such compensation relates to the period 3 April 1976 until 2 April 1978.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT JAMES PERRY