Phillips and Australian Capital Territory (Compensation) [2019] AATA 936 (20 May 2019)
Division:GENERAL DIVISION
File Number(s): 2016/5772
Re:Linda Phillips
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
Decision
Tribunal:Senior Member Linda Kirk
Date:20 May 2019
Place:Canberra
The Tribunal affirms the reviewable decision.
........................................................................
Senior Member Linda Kirk
Catchwords
COMPENSATION – achilles tendonitis/tendinopathy – whether claimed condition is an ailment or injury simpliciter – whether claimed condition arose out of or in the course of her employment – meaning of ‘place of work’ and ‘ordinary recess’ considered – whether Applicant injured while undertaking activity ‘associated with’ her employment or at the ‘direction or request of the Commonwealth’ – whether Applicant’s employment significantly contributed to her condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 14
Cases
Australian Postal Corporation v Burch (1998) 156 ALR 483
Charles R Davidson Co v M’Robb [1918] AC 304
Comcare v Mooi (1996) 69 FCR 439
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Foley and Comcare [2012] AATA 458
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2016] AATA 459
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Weston v Great Bolder Mining Ltd (1964) 112 CLR 34Secondary Materials
ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017
REASONS FOR DECISION
Senior Member Linda Kirk
20 May 2019
INTRODUCTION
Linda Phillips (‘the Applicant’) was born in June 1967. She was employed by ACT Health (‘the Agency’) from January 1986 to October 2016.
In November 2014 the Applicant was employed as a Senior Officer Grade C Information Manager, which was an administrative data management role in the Agency’s Strategy and Corporate division.[1]
[1] T8, p35.
In November 2014 the Agency operated from leased premises at 11 Moore Street, Canberra City (‘the Agency’s premises’). The Agency did not have any lease over, or other claim to, the public footpath running along the western side of Moore Street and its employees’ duties were not carried out on the footpath.[2]
[2] Exhibit R6, Statement of Janine Hammat dated 27 June 2018 at para 8.
On 17 February 2015 the Applicant made a claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for ‘Achilles tendon injury/Achilles tendinitis’ (‘the Claimed Injury’) which she claimed developed following an incident on 25 November 2014 in which the Applicant injured her ‘Achilles tendon left leg’ whilst assisting an elderly man who had fallen on the pavement near the corner of Moore and Rudd Streets, Canberra (‘the November 2014 incident’).
Comcare issued a determination dated 4 May 2015 denying liability under s 14 of the SRC Act.[3] It determined that it was not liable for the Applicant’s ‘Achilles bursitis/tendonitis’ on the…
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- Case
- [2019] AATA 936
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were multifaceted. Firstly, it was necessary to ascertain whether the Applicant's condition constituted an "ailment" or an "injury (other than a disease)" under the relevant legislation. If it was deemed an injury other than a disease, the Tribunal had to determine if this injury arose out of or in the course of her employment, considering whether it occurred at her place of work, during an ordinary recess, or while undertaking an activity associated with her employment or at the direction of the Commonwealth. Alternatively, if the condition was classified as an ailment, the Tribunal was required to assess whether her employment had significantly contributed to its development.
The Tribunal's reasoning focused on distinguishing between an "injury simpliciter" and a "disease" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). An injury simpliciter requires a causal or temporal connection with employment, often involving a sudden and ascertainable physiological change. A disease, conversely, requires significant contribution from employment. The Tribunal considered the Applicant's employment duties and break arrangements, noting that she was not required to take breaks at specific times and could do so at irregular intervals. Ultimately, the Tribunal found that the Applicant did not suffer an "injury" as defined by section 14 of the SRC Act.
Consequently, the Tribunal concluded that the Respondent was not liable to pay compensation to the Applicant for the claimed injury. The Reviewable Decision was affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
If the Applicant suffered an ‘ailment’, it was not significantly contributed to by her employment. She was not engaged in or undertaking her work duties at the time the injury was sustained.CONSIDERATION AND REASONS The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. Did the Applicant suffer a ‘disease’ or ‘an injury (other than a disease)’? - s5A(1)(b) SRC Act The first issue for the Tribunal’s consideration is whether the Claimed Injury for which the Applicant seeks compensation can be considered a ‘disease’ or an ‘injury other than a disease’ for the purposes of the SRC Act.Distinction between an ‘injury simpliciter’ and a ‘disease’ The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’), French CJ, Kiefel, Nettle and Gordon JJ at [42]), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’: May per French CJ, Kiefel, Nettle and Gordon JJ at [44]. An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486 (‘Burch’); Prain v Comcare [2016] AATA 459 at [7]-[8]. Whether a claimed condition is an injury simpliciter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (‘Kennedy Cleaning’), ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’ at [22]. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’: Kennedy Cleaning per Gleeson CJ and Kirby J at [39].What is an ‘injury simpliciter’? In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ at [52]. Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.