Robotham (Lawless) and Comcare - [2000] AATA 213

CATCHWORDS – COMPENSATION – applicant diagnosed with spondylolisthesis during physical examination arising from October 1986 fall – whether the applicant's fall in October 1986 arose out of, or in the course of, her employment – whether episodes of pain suffered since October 1986 were caused by her fall – decision affirmed.

Compensation (Commonwealth Government Employees) Act 1971 – ss 5, 24, 27,
Defense Act 1903 – s. 45(1)
Safety Rehabilitation and Compensation Act 1988 – s 24, 124(1A)
Workers Compensation Act 1987 (NSW) – s 9

Behan v Australian Telecommunications Corporation (1990) 22 ALD 545; (1990) 99 ALR 79; (1990) FCR 337; (1990) 12 AAR 466
Charles R Davidson v M'Robb [1918] AC 304
Comcare v Mather and Mitchell (1995) 37 ALD 463
Comcare v O'Dea (1997) 26 AAR 252
Commonwealth v Wright (1956) 96 CLR 536
Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529
Gregory v Comcare (unreported, [1997] 4 FCA, 15 January, 1997)
Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473
Humphrey Earl Limited v Speechley (1951) 84 CLR 126

DECISION AND REASONS FOR DECISION [2000] AATA 213

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q1999/442
GENERAL ADMINISTRATIVE DIVISION      )

Re SHIRLEY LORRAINE ROBOTHAM (LAWLESS)

Applicant

And COMCARE

Respondent

DECISION

Tribunal  Miss S A Forgie (Deputy President)
  Dr K P Kennedy (Member)
  Mr I R Way (Member)

Date 21 March, 2000

Place Brisbane

DecisionThe Tribunal affirms the decision of the respondent dated 14 June, 1996.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 13 August, 1996, the applicant, Mrs Shirley Lorraine Robotham (then known as Shirley Lorraine Lawless), applied for review of a decision of the respondent, Comcare, dated 14 June, 1996. In that decision, Comcare had revoked its earlier determination dated 20 December, 1995 accepting liability for aggravation of a pre-existing spondylolisthesis. The application for review of Comcare's decision was heard and decided by a differently constituted Tribunal on 9 April, 1998. An appeal from that matter was allowed by the Federal Court without adjudication on 1 February, 1999 and remitted to the Tribunal for re-hearing.

At the re-hearing, Mr Kelso of counsel represented Mrs Robotham and Miss Ford of counsel represented Comcare. The appeal book to the Federal Court was admitted in evidence together with a letter dated September, 1989 from the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (as Comcare was previously known) to Mrs Robotham, notes of Dr Moore dated 24 May, 1988 relating to Mrs Robotham (who was then known as Shirley Lorraine Flood), a report of Ms Lesley Stephenson dated 29 July, 1999 and a Department of Veterans' Affairs form completed on 29 February, 1988. Mrs Robotham gave evidence in support of her case together with Mr Charles Baldrey. Dr John Morris, orthopaedic surgeon, was made available for cross-examination by Miss Ford.

BACKGROUND

We find that Mrs Robotham enlisted in the Australian Army on 7 August, 1985 when she was 17 years of age. During her first three months, she undertook basic training and…

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 Robotham (Lawless) and Comcare

Details

AGLC: Robotham (Lawless) and Comcare [2000] AATA 213
Case: [2000] AATA 213
Decision Date: 21 March 2000

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) concerned whether Mrs Shirley Lorraine Robotham, a former member of the Australian Defence Force, was entitled to compensation for injuries she claimed to have sustained during her employment. Mrs Robotham argued that she had fallen on October 31, 1986, which aggravated her spondylolisthesis, a condition she claimed was pre-existing but asymptomatic until the fall. The Tribunal was tasked with determining if the fall occurred in the course of her employment and if the subsequent pain was caused by the fall.

The Tribunal found that Mrs Robotham's spondylolisthesis did not originate from her employment and that the fall did not occur during her duties but rather after her work hours. Key evidence included the time references in her own statements, the officer in charge's documentation, and the recollections of her former supervisor, Mr Baldrey. Mrs Robotham's insistence that she was on a break was contradicted by these documents and testimonies, leading the Tribunal to conclude that she had completed her shift and was not in the course of her employment at the time of the fall.

Furthermore, the Tribunal held that even if the fall had occurred during a break, it would not necessarily mean it occurred in the course of employment. The distinction hinged on whether the break was part of an overall period of work or an interval between discrete periods of work. The evidence did not support Mrs Robotham's claim that she was on a meal break at the time of the fall.

The Tribunal affirmed the decision of Comcare, rejecting Mrs Robotham's claim for compensation based on the findings that the fall did not arise out of, or in the course of, her employment. Therefore, there was no need to address whether the fall caused her subsequent pain.

Orders