Decision The Tribunal directs that it has no jurisdiction to review a claim by the applicant for permanent impairment pursuant to section 24 of the Safety, Rehabilitation and Compensation Act 1988, following upon the election by the applicant to sue for damages for non-economic loss suffered as a result of the injury, the subject of his claim.

............(Signed)..................................
D.W. MULLER
SENIOR MEMBER

CATCHWORDS
COMPENSATION – jurisdiction – election to sue – irrevocable – wrong advice by solicitor – no estoppel – whether doctrine of "non est factum" applies
Safety, Rehabilitation and Compensation Act 1988: ss 24, 25, 27, 41 and 45
Verwayen and the Commonwealth of Australia (1990) 170 CLR 394
Formosa and another v Secretary, Department of Social Security [(1998) 9 AAR 260]
Roberts v Repatriation Commission [(1992) 39 FCR 420]
Petelin v Cullen (1975) 132 CLR 355

REASONS FOR DECISION

Mr. D.W. Muller, Senior Member

The parties to these proceedings seek a determination as to whether or not the Tribunal has jurisdiction to review the matter following an attempt by the Applicant to revoke an election to institute an action or proceedings against the Commonwealth for damages for non-economic loss.
The facts relevant to this Direction are as follows:
(i)On 26 November 1999, the Applicant, who was a Centrelink Service Officer, claimed that he hit his right elbow on a door at his workplace.
(ii)On 16 December 1999, the Applicant submitted a claim for compensation for "right elbow tendinitis". His claim form said that he had "pain left elbow f/arm and hand" and that his "right arm" was the part of the body that was affected.
(iii)On 24 January 2000 the Respondent advised the Applicant that his claim for compensation for right lateral epicondylitis had been accepted up to and including 21 February 2000. This resulted in Comcare meeting medical costs associated with the treatment of the Applicant's right arm.
(iv)A report from Dr. Roger on 23 March 2000, affirmed that:
(a)Dr. Roger had been Mr. Robertson's General Practitioner for many years.
(b)Mr. Robertson was treated on 29 November 1999 for a "sore right elbow" which he said was the result of striking his right elbow on the wall at work.
(c)Dr. Roger diagnosed the "classical" signs of "tennis elbow" – lateral epicondylitis.
(d)Mr. Robertson's capacity for employment was extremely limited.
(e)Mr. Robertson had been referred to an orthopaedic surgeon.
(f)There was a good chance of complete resolution to the problem.
(v)On 4 April 2000, Dr. Ashwell, orthopaedic surgeon, recommended ongoing physiotherapy and the bracing of the arm.
(vi)On 11 April 2000, a physiotherapist from Work Directions provided a report on the Applicant which included the following information (among other things):
(a)that the Applicant was…

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 Robertson and Comcare

Details

AGLC: Robertson and Comcare [2002] AATA 96
Case: [2002] AATA 96
Decision Date: 15 February 2002

CaseChat Overview and Summary

The applicant, Robertson, sought compensation for injuries sustained at work from the respondent, Comcare. The dispute centred around the validity of an election to sue made by Robertson, which was allegedly influenced by incorrect legal advice from his solicitor. The matter was heard in the Federal Court of Australia. The central legal issues revolved around whether the election to sue was irrevocable due to the solicitor's incorrect advice and whether the doctrine of non est factum could be applied to challenge the validity of the election. The court had to determine if the doctrine of non est factum, which allows for the nullification of a document due to a fundamental mistake, could be extended to the context of the election to sue.

The court considered whether the incorrect advice rendered the election to sue voidable or if it was merely void. It noted that the election to sue is irrevocable once made, but the doctrine of non est factum could potentially be invoked if Robertson could demonstrate that he was misled by a fundamental mistake. The court examined the applicability of this doctrine in the context of the election to sue, referencing previous cases such as Formosa and Roberts, which established that the doctrine could apply to certain documents, but did not extend to the irrevocable nature of the election to sue. The court also considered Verwayen, which highlighted the importance of the applicant's understanding of the document in question. Ultimately, the court concluded that the doctrine of non est factum was not applicable to invalidate the election to sue in this instance.

In reaching its decision, the court held that the election to sue was irrevocable and not subject to challenge based on the doctrine of non est factum. The court emphasised that the applicant must bear the consequences of the incorrect advice provided by their solicitor. The applicant's election to sue was therefore upheld as valid and binding. The court's reasoning was grounded in the principle that the election to sue is an irrevocable decision, and any errors in the advice provided by the solicitor did not negate this fundamental aspect of the statutory compensation scheme.

The court dismissed Robertson's application, confirming that the election to sue was valid and that Comcare was not estopped from relying on it. The final orders reflected this decision, affirming that the election to sue remained binding and that Comcare was not prevented from asserting its position based on the election.

Orders