Smith v Comcare

Case [2013] FCAFC 65

FEDERAL COURT OF AUSTRALIA

Smith v Comcare [2013] FCAFC 65

Citation: Smith v Comcare [2013] FCAFC 65
Appeal from: Smith v Comcare [2012] FCA 502
Parties: LAWRENCE SMITH v COMCARE
File number: ACD 43 of 2012
Judges: GREENWOOD, BUCHANAN AND BROMBERG JJ
Date of judgment: 28 June 2013
Catchwords: ADMINISTRATIVE LAW – error of law – whether a finding about when a disease was “sustained” might have diverted the Administrative Appeals Tribunal from consideration of the appellant’s case about working conditions over the whole of the relevant period
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

Cases cited:

Smith v Comcare [2011] AATA 662

Smith v Comcare [2012] FCA 502

Date of hearing: 30 November 2012
Date of last submissions: 14 December 2012
Place: Sydney (via video link to Canberra)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 72
Counsel for the Appellant: Mr J Fernon SC and Mr J Mrsic
Solicitor for the Appellant: T D Kelly & Co
Counsel for the Respondent: Ms S Maharaj QC and Mr D Richards
Solicitor for the Respondent: Dibbs Barker

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 43 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

LAWRENCE SMITH
Appellant
AND:

COMCARE
Respondent

JUDGES:

GREENWOOD, BUCHANAN AND BROMBERG JJ

DATE OF ORDER:

28 JUNE 2013

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The appeal is allowed with costs.

2.The matter is remitted to the Administrative Appeals Tribunal for further consideration and determination according to law.

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 43 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

LAWRENCE SMITH
Appellant
AND:

COMCARE
Respondent

JUDGES:

GREENWOOD, BUCHANAN AND BROMBERG JJ

DATE:

28 JUNE 2013

PLACE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

REASONS FOR JUDGMENT

GREENWOOD J:

  1. I have had the benefit of reading the Reasons for Judgment of Buchanan J in draft and also the draft Reasons for Judgment of Bromberg J.  In my respectful opinion, an error of law on the part of the Administrative Appeals Tribunal (the “Tribunal”) is made out for the reasons identified by Buchanan J and I agree with his Honour’s observation that the possibility of error on the merits before the Tribunal cannot reasonably be excluded having regard to the identified error of law.  In my view, the appeal should be allowed with costs and the matter ought to be remitted to the Tribunal for further consideration and determination according to law. 

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:
Dated:       28 June 2013


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 43…

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AGLC
Smith v Comcare [2013] FCAFC 65
Case
[2013] FCAFC 65
Decision Date

CaseChat Overview and Summary

In the case of Smith v Comcare, the appellant, Mr Smith, challenged the decision of the Administrative Appeals Tribunal (AAT) which had rejected his claim for worker's compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr Smith, who had been a meat inspector from 1977 to 2008, sought compensation from Comcare for hip osteoarthritis, which he claimed was aggravated by his employment. The central issue before the AAT was whether the appellant's employment had materially contributed to the aggravation of his osteoarthritis. The AAT affirmed the decision of Comcare to reject the claim.

The primary legal issue was whether the AAT might have been diverted by its premature consideration of when Mr Smith's disease was "sustained," as provided for by s 7(4) of the Act, from fully considering the appellant's case regarding the working conditions over the entire relevant period. Mr Smith argued that this premature attention might have led the AAT astray in its analysis of the issues under s 14 of the Act. The court found that there was a reasonable possibility that the AAT's focus on the timing of the disease's "sustaining" might have influenced its approach to the overall inquiry about working conditions. This reasoning was supported by the AAT's conclusions in [81] of its decision.

The court concluded that the question of law regarding the timing of the disease's "sustaining" was relevant and not without consequence. Given the AAT's focus on this issue, it was deemed necessary for the AAT to re-evaluate whether the provisions of s 14 were satisfied, considering Mr Smith's employment from 1983 to 2008. The court found it unnecessary to require further evidence, and thus, the appeal was upheld. The matter was remitted to the AAT for further consideration and determination according to law. The appellant was awarded his costs of the present appeal.

ORDERS:
1. The appeal is allowed with costs.
2. The matter is remitted to the Administrative Appeals Tribunal for further consideration and determination according to law.

Orders

Orders of the court

1. The appeal is allowed with costs.

2. The matter is remitted to the Administrative Appeals Tribunal for further consideration and determination according to law.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I cannot exclude from my own mind the reasonable possibility, for which the appellant contended, that the AAT’s premature and unnecessary attention to the question in s 7(4) might have sent it on the wrong line of enquiry about the issues arising under s 14. The conclusions by the AAT stated in [81] of its decision (set out earlier) give sufficient (even if not decisive) support for that thesis.CONCLUSION In those circumstances, in my view, the question of law does not lack relevance. Furthermore, I am not satisfied that there need not be further attention to the question of whether the provisions of s 14 were satisfied, having regard to the employment of the appellant from 1983 to 2008. It would be a matter for the AAT to determine, but I cannot see why further evidence would be necessary or appropriate. I would uphold the appeal and remit the matter to the AAT for further consideration and determination according to law. The appellant should have his costs of the present appeal. Between 1977 and 2008, the appellant (“Mr Smith”) worked as a meat inspector. From 1983, he was engaged by a Commonwealth service now known as the Quarantine and Inspection Service. In November 2008, Mr Smith stopped work due to severe pain in his right hip. He was operated on and his hip was replaced. On 14 March 2010, he was medically retired from his employment with the Commonwealth. Mr Smith applied to the Respondent (“Comcare”) for worker’s compensation. His application came to be dealt with by the Administrative Appeals Tribunal (“the AAT”) (Smith v Comcare [2011] AATA 662). The AAT affirmed Comcare’s decision to reject Mr Smith’s claim. Mr Smith’s challenge to the AAT’s decision was dismissed by the primary judge (Smith v Comcare [2012] FCA 502). There is no issue that Mr Smith suffers from hip osteoarthritis. The main issue before the AAT was whether Mr Smith’s hip condition was a degenerative condition which had been aggravated by Mr Smith’s work as a meat inspector. If Mr Smith’s condition was aggravated by his employment, Comcare would be liable to pay Mr Smith compensation in accordance with s 14(1) of the Safety, Rehabilitation and Compensation Act (1988) (Cth) (“the Act”). At the time relevant to this litigation, the expression “injury” was defined by the Act to include, inter alia, a “disease suffered by an employee” and the definition of “disease” encompassed the aggravation of any ailment, being an ailment or aggravation that “was contributed to in a material degree by the employee’s employment”: s 4(1) of the Act and the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act (2007) (Cth), Sch 1, s 42. By reference to the definition of “disease”, the critical question before the AAT was whether Mr Smith’s employment had contributed in a material degree to the aggravation of his osteoarthritis. Before the primary judge, Mr Smith’s counsel argued that as well as determining whether the aggravation of Mr Smith’s osteoarthritis had been contributed to in a material degree by his employment, it was also incumbent upon the AAT to determine when the aggravation had occurred. A deeming provision contained in s 7(4) of the Act governed that latter question. It provided:For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:(a)the employee first sought medical treatment for the disease, or aggravation; or(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;whichever happens first.

Ratio Decidendi

Legal Principle Established

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