Talanoa and Comcare - [2005] AATA 609

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 609
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2003/1146; N2004/169;
) N2004/793

GENERAL ADMINISTRATIVE DIVISION )

Re

AISAKE TALANOA

Applicant

And

COMCARE

Respondent

DECISION

Tribunal
Senior Member M D Allen
Dr M E C Thorpe, Member

Date8 June 2005
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2003/1146; N2004/169
) N2004/793

GENERAL ADMINISTRATIVE DIVISION )

Re

AISAKE TALANOA

Applicant

And

COMCARE

Respondent
DECISION

Tribunal              Senior Member M D Allen
  Dr M E C Thorpe, Member
Date  8 June 2005
Place                   Sydney
DecisionFor the reasons given orally at the conclusion of the hearing, the decisions under review are AFFIRMED.

(Sgd) M.D. ALLEN
..................................................
Presiding Member

Date of Hearing  6 and 8 June 2005
Date of Decision  8 June 2005
Counsel for Applicant                  Mr A Canceri
Solicitor for Applicant                   Andrew Fegent & Company Solicitors
Counsel for Respondent             Miss R. M. Henderson
Solicitor for Respondent              Dibbs Barker Gosling

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter Nos N2003/1146, N2004/169, N2004/793
By MR M.D. ALLEN, Senior Member
AISAKE TALANOA v COMCARE
SYDNEY, WEDNESDAY, 8 JUNE 2005
MR ALLEN: The first matter N2003/1146 relates to a reviewable decision made the thirtieth day of June 2003 which pursuant to section 14 of the Safety Rehabilitation and Compensation Act accepted as a work-caused industry a condition described as "closed fracture of ribs, right" and then rejected a claim in respect of "aggravation of disc degeneration L4/5, L5/S1 and an adjustment reaction with depressive reaction".
The second matter, number N2004/169 concerns a reviewable decision dated 3 February 2004 which rejected claims in respect of lumbar spine, right shoulder, right leg and reproductive organs.
Matter N2004/793 referred to a claim for permanent impairment and a reviewable decision of 22 June 2004, the permanent impairment being in relation to the right shoulder, leg, neck, lumbar spine and a psychiatric disorder.
The events giving rise to the claims was that the applicant who was then employed by the Department of Foreign Affairs and Trade, was on the sixteenth day of October 2000 in the course of his employment involved in a motor vehicle accident. He was driving a Commonwealth owned vehicle when that vehicle came into collision with a truck. The accident was of moderate severity in that the Commonwealth vehicle was found to be beyond economical repair. As a result of the accident, the applicant was transported to St George Hospital and remained there for part of the day and was given morphine to cope with pain and then later discharged with some analgesia.
There is some dispute as to just what happened after the accident but that seems to be somewhat immaterial, except that the applicant said it was bystanders who released his seat-belt and removed him from the vehicle, whereas the notes of the St George Hospital state that he "self-extricated, walked at the scene and there developed right-sided chest pain and a sore right knee".
At this stage, it is worth mentioning that there are discrepancies in the evidence the…

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.

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Details

Case: [2005] AATA 609
Decision Date: 8 June 2005

CaseChat Overview and Summary

The applicant in Talanoa and Comcare sought compensation for an injury, aggravation, and a psychiatric disorder allegedly suffered as a result of a motor vehicle accident that occurred in the course of his employment. The decision was made by the Administrative Appeals Tribunal (AAT), with the Commonwealth of Australia (Comcare) as the respondent. The applicant had previously lodged claims for compensation that were dismissed, and he appealed to the AAT, which also dismissed his claims. The applicant then appealed to the Federal Court of Australia, which was subsequently appealed to the High Court of Australia. The High Court found that the AAT had erred in its approach to the assessment of the applicant's credibility and remitted the matter back to the AAT for re-hearing.

The legal issues that the court was required to decide included whether the applicant had suffered an injury, aggravation, and a psychiatric disorder as a result of the motor vehicle accident in the course of his employment. The court also had to consider whether the AAT had properly assessed the applicant's credibility and whether the inconsistencies between his evidence to the Tribunal and the histories obtained by medical practitioners were sufficient to undermine his claims. The court had to determine whether the AAT's decision was correct and whether there were any errors of law that warranted the decision being overturned.

The court found that the AAT had erred in its approach to the assessment of the applicant's credibility. The court found that the AAT had not properly considered the inconsistencies between the applicant's evidence and the histories obtained by medical practitioners, and that this had led to an error in the AAT's decision. The court found that the AAT had not given sufficient weight to the inconsistencies and had not properly assessed the applicant's credibility. The court found that the AAT's decision was therefore incorrect and that the matter should be remitted back to the AAT for re-hearing. The court found that there were no other errors of law that warranted the decision being overturned.

The final orders of the court were that the decision of the AAT be set aside and that the matter be remitted back to the AAT for re-hearing. The court found that the AAT had not properly assessed the applicant's credibility and that this had led to an error in the AAT's decision. The court found that the matter should be re-heard by the AAT, with proper consideration given to the inconsistencies between the applicant's evidence and the histories obtained by medical practitioners. The court found that there were no other errors of law that warranted the decision being overturned.

Orders