FEDERAL COURT OF AUSTRALIA
Smith v Comcare [2015] FCAFC 24
Citation: Smith v Comcare [2015] FCAFC 24 Appeal from: Smith v Comcare [2014] FCA 811 Parties: LAWRENCE SMITH v COMCARE File number: ACD 79 of 2014 Judges: JESSUP, JAGOT AND GRIFFITHS JJ Date of judgment: 6 March 2015 Catchwords: ADMINISTRATIVE LAW – whether primary judge misconstrued Full Court’s orders – whether Administrative Appeals Tribunal conducted remittal in accordance with Full Court’s orders – whether Tribunal could adopt findings from its previous decision Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(4), 14, 16Cases cited: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518
Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374
Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256Date of hearing: 16 February 2015 Place: Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 71 Counsel for the Appellant: J Fernon SC and D Scully Solicitor for the Appellant: TD Kelly & Co Solicitors Counsel for the Respondent: P Woulfe Solicitor for the Respondent: DibbsBarker
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 79 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: LAWRENCE SMITH
AppellantAND: COMCARE
Respondent
JUDGES:
JESSUP, JAGOT AND GRIFFITHS JJ
DATE OF ORDER:
6 MARCH 2015
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 79 of 2014
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: LAWRENCE SMITH
AppellantAND: COMCARE
Respondent
JUDGES:
JESSUP, JAGOT AND GRIFFITHS JJ
DATE:
6 MARCH 2015
PLACE:
CANBERRA
REASONS FOR JUDGMENT
This appeal is part of a long running dispute between Mr Smith and Comcare concerning his claim for workers compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
In 2009, Mr Smith lodged an application for workers compensation under that legislation in relation to injuries to his right hip which Mr Smith alleged related to his employment as a meat inspector with the Australian Quarantine and Inspection Service (AQIS) and its predecessor. Mr Smith had commenced employment with AQIS in 1983. On 10 December 2009, Comcare determined that there was no liability under s 14 of the SRC Act, which decision was subsequently affirmed on an internal review.
Comcare’s rejection of Mr Smith’s claim set in train a series of reviews and appeals involving the Administrative Appeals Tribunal (AAT) (twice), the Federal Court (twice) and the Full Court of the Federal Court (this being the second such appeal).
Before summarising those proceedings and describing the nature of this appeal, it is convenient to…
Continue reading Smith v Comcare
Sign in free to access the full text
Details
- AGLC
- Smith v Comcare [2015] FCAFC 24
- Case
- [2015] FCAFC 24
- Decision Date
CaseChat Overview and Summary
The case of Smith v Comcare involved a dispute between the appellant, Mr Smith, and the respondent, Comcare, regarding a claim for compensation for occupational hip osteoarthritis. The matter was initially heard in the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Full Court of the Federal Court of Australia. The appeal was further remitted back to the AAT for reconsideration in light of the Full Court's decision.
The primary legal issues before the court were whether the primary judge had misconstrued the orders of the Full Court and whether the AAT had conducted the remittal in accordance with those orders. Additionally, the court had to determine whether the AAT was correct in adopting findings from its previous decision. The crux of the dispute was the interpretation of the Full Court’s remittal orders and whether the AAT had correctly applied them in reaching its decision.
The court examined the reasoning provided by the primary judge and the AAT. The Full Court had previously found that the primary judge had failed to properly consider the evidence regarding the nature of Mr Smith’s work and its potential impact on his hip osteoarthritis. The Full Court had remitted the matter to the AAT for reconsideration, emphasising the need for a more detailed examination of the specific duties and physical demands of Mr Smith’s employment. The court found that the primary judge had not misconstrued the Full Court’s orders but had instead correctly interpreted them. The AAT, however, had not fully complied with the remittal orders by failing to adequately reassess the evidence concerning the physical demands of Mr Smith's job. The court concluded that the AAT’s adoption of findings from its previous decision was improper as it did not address the specific issues highlighted by the Full Court.
The court ordered that the appeal be dismissed, meaning Mr Smith’s claim for compensation was not upheld. Furthermore, Mr Smith was directed to pay Comcare’s costs as agreed or assessed, in accordance with the Federal Court Rules.
The primary legal issues before the court were whether the primary judge had misconstrued the orders of the Full Court and whether the AAT had conducted the remittal in accordance with those orders. Additionally, the court had to determine whether the AAT was correct in adopting findings from its previous decision. The crux of the dispute was the interpretation of the Full Court’s remittal orders and whether the AAT had correctly applied them in reaching its decision.
The court examined the reasoning provided by the primary judge and the AAT. The Full Court had previously found that the primary judge had failed to properly consider the evidence regarding the nature of Mr Smith’s work and its potential impact on his hip osteoarthritis. The Full Court had remitted the matter to the AAT for reconsideration, emphasising the need for a more detailed examination of the specific duties and physical demands of Mr Smith’s employment. The court found that the primary judge had not misconstrued the Full Court’s orders but had instead correctly interpreted them. The AAT, however, had not fully complied with the remittal orders by failing to adequately reassess the evidence concerning the physical demands of Mr Smith's job. The court concluded that the AAT’s adoption of findings from its previous decision was improper as it did not address the specific issues highlighted by the Full Court.
The court ordered that the appeal be dismissed, meaning Mr Smith’s claim for compensation was not upheld. Furthermore, Mr Smith was directed to pay Comcare’s costs as agreed or assessed, in accordance with the Federal Court Rules.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant is to pay the respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
(b) The AAT’s first decision: Mr Smith appealed Comcare’s determination to the AAT. His appeal was unsuccessful (the AAT’s first decision). Reasons were given for the AAT’s first decision on 28 September 2011. The following paragraphs in those reasons are relevant (emphasis added):13.For sheep, three stations were involved: fronts, viscera and final inspection. Mutton inspection was the most difficult because the process was faster than for beef and required more repetitive bending and twisting. This was particularly so for the fronts because these were hung very low.…18.[At Wagga] there was no inspection of pigs and Mr Smith spent about half of his time each on beef and mutton until 1993 and then dealt only with cattle. He was assigned regular overtime hours until 1993. He continued to undertake hygiene inspections and load out duties about once per week until about 2000 when meat inspectors were relieved of those functions. From 1993, Mr Smith worked overtime on about 10 to 12 Saturdays per year.…78.A summary of the conclusions in the [research] reports referred to in [the various expert medical report in] this matter read:Ÿ“Occupational activity and the risk of hip osteoarthritis” by Cooper et al noted an increased risk to farmers but considered that it was “currently unclear whether the excess risk might be found in other heavy manual workers, for example construction workers and labourers”. It referred to a British study which found hip osteoarthritis was “related to occupations which entailed regular heavy lifting (for example, the daily moving of weights greater that 25 kg by hand), prolonged standing, and walking over rough ground”.Ÿ“Osteoarthritis of the hip in women and its relation to physical load at work and in the home” by Vingard et al concluded that high physical loads at work and in the home undertaken up to the age of 50 seem to be risk factors for development of severe osteoarthritis of the hip in women.Ÿ“Osteoarthritis of the Hip and Occupational Lifting” by Coggan et al concluded that there was a strong case for regarding hip osteoarthritis as an occupational disease in men whose work involved prolonged and frequent heavy lifting. It noted that risk was elevated in those who regularly lifted weights of 10 kg or more.Ÿ“Influence of Work on the Development of the Hip: A Systematic Review” by Lievense et al concluded that there was moderate evidence of a positive relationship with hip osteoarthritis and lifting heavy weights of 25 kg or more.Ÿ“Hip osteoarthritis; influence of work with heavy lifting, climbing stairs or ladders, or combining kneeling/squatting with heavy lifting” by Jensen concluded that there was moderate evidence of a relationship between osteoarthritis hip and lifting where the burden was at least 10 to 20 kgs for at least 10 to 20 years.Ÿ“Risk factors for the development of hip osteoarthritis: a population-based prospective study” by Juhakoski et al concluded that heavy physical stress at work and major musculoskeletal injuries are associated with an increased risk of developing clinically diagnosed hip osteoarthritis. It also found that heavy manual labour proved to be a significant predictor of the development of hip osteoarthritis. There, heavy manual work was defined as “either mostly standing work involving much lifting of light objects or lifting and carrying heavy objects … ”Ÿ“Associations of Occupational Tasks with Knee and Hip Osteoarthritis: The Johnston County Osteoarthritis Project”: by Allen et al concluded that, for hip osteoarthritis, a particularly strong and consistent association was observed for lifting tasks, with the strongest and most consistent evidence being for an overall heavy physical workload and heavy lifting.79.The majority of those studies and, indeed, the medical reports in evidence support the need for heavy lifting in employment in order to have an association with hip osteoarthritis. The Juhakoski report also implicated light objects but only in the context of “much lifting” thereof. Dr Browne, who implicated the employee's flexed position to be relevant, also required that to be done in the context of lifting. His evidence in relation to the DVD was that he observed no lifting. I am satisfied that Mr Smith's meat inspection duties at Wagga did not involve him in heavy lifting and that the only lifting of any moment was in relation to the turning of items at the viscera table. Even in that regard, the motion was more one of quickly flipping the item over rather than of lifting. I am satisfied that Mr Smith's inspection duties at Wagga did not make a material contribution to the aggravation of his hip osteoarthritis.…81.On Mr Smith's evidence, the work at Wagga was more onerous prior to 1993 when he was involved in mutton as well as beef inspections. However, the evidence of Dr Browne and Professor Sambrook was that the aggravation of Mr Smith's hip osteoarthritis in 1997 was related to his activity in the years immediately preceding that onset.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.