Upston and Comcare (Compensation)

Case [2021] AATA 2378

Upston and Comcare (Compensation) [2021] AATA 2378 (19 July 2021)

Division:GENERAL DIVISION

File Number(s):2020/4507      

Re:Peter Upston  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:19 July 2021

Place:Canberra

The decision under review is affirmed.

……..………[sgd]………………

Mr S. Webb, Member

WORKERS’ COMPENSATION – knee injury claim – threshold liability – scope of claim – left knee osteoarthritis – alleged historical incidents in previous employment – nature and conditions of previous employment - factual basis of claim – credit – applicable legislation - notice – meaning of ‘injury’ for purposes of ‘notice’ provision - when alleged ailment claimed as an injury first suffered – when applicant became aware of alleged injury – consideration of prejudice and reasonable cause - consideration of ‘injury’ and ‘disease’ provisions – ‘ailment’ – material contribution by nature and conditions of previous employment not established – factual basis of alleged injuries in 1981 and 1986 – significance of missing documents – corroboration – expert opinion - material contribution to ailment – decision

PROCEDURE – objection to expert opinion evidence – opinion in respect of assumed facts – Tribunal not strictly bound by rules of evidence - basis rule not applicable - applicability of opinion rule – assumption of facts distinguished from ambulatory assumption – assessment of relevance - extent to which assumed facts are directed to findings sought – requirement for opinion to be based on specialist knowledge – meaning of specialist knowledge – no breach of procedural fairness - basis of objection not made out – objection overruled

Legislation

Compensation (Commonwealth Government Employees) Act 1971
Evidence Act 1995 (Cth) ss 76, 77 and 79
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A-B, 14, 16, 19, 27, 53, 124
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) ss 41, 42

Cases

Bater v Bater [1950] 2 All ER 458

Dasreef Pty Ltd v Hawchar [2011] HCA 21

Flounders v Millar [2007] NSWCA 238

Frosch v Comcare [2004] FCA 1642

Hart v Commissioner of Taxation (No. 2) [2016] FCA 897

HG v The Queen [1999] HCA 2

Honeysett v The Queen [2014] 29

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 

Neat Holdings Pty. Limited v Karajan Holdings Pty. Limited and Ors [1992] HCA 66

Re Day [2017] HCA 2

Repatriation Commission v Smith [1987] FCA 260

Smith v Comcare [2013] FCAFC 65

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

REASONS FOR DECISION

Mr S. Webb, Member

19 July 2021

  1. Peter Upston claimed compensation for an injury to his left knee that allegedly occurred in 1981 (first claim). Comcare decided to reject the claim by primary determination and on reconsideration. Mr Upston applied for review of the decision by the Tribunal – application 2019/7546.

  2. Mr Upston submitted a further claim, clarifying the injury for which…

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Details
AGLC
Upston and Comcare (Compensation) [2021] AATA 2378
Case
[2021] AATA 2378
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Upston against a decision by Comcare. Mr. Upston sought compensation for an ailment, specifically left knee osteoarthritis, which he alleged arose out of or in the course of his employment with the Australian Federal Police (AFP) and the ACT Police. The Administrative Appeals Tribunal was tasked with determining whether Mr. Upston's condition constituted an "injury" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act).

The Tribunal was required to consider whether Mr. Upston's left knee osteoarthritis met the definition of an "injury" as defined by the SRC Act. This involved assessing the nature of his employment, particularly his involvement in a Response Team Members Course and his attendance in Melbourne for the Commonwealth Heads of Government Meeting (CHOGM) in 1981, and whether these activities, or his employment generally, caused or contributed to his condition to the extent that it qualified as an injury under the Act. The Tribunal also had to determine the factual basis for Mr. Upston's claims regarding his activities and postings.

The Tribunal acknowledged its ability to inform itself of any matter in any manner it sees fit, without being strictly bound by the rules of evidence. However, it emphasised that factual matters must be decided on the basis of relevant and logically probative material. After reviewing the evidence, including Mr. Upston's own account of his training and activities, and noting that Comcare accepted his presence in Melbourne in September 1981, the Tribunal concluded that Mr. Upston's left knee osteoarthritis did not meet the threshold for an "injury" under the SRC Act.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Furthermore, notwithstanding that the Tribunal may inform itself of any matter in any manner it thinks fit and it is not strictly bound to apply the rules of evidence set out in the Evidence Act 1995 (Cth) (Evidence Act), it must decide factual matters on the basis of material that is relevant and logically probative.[14] [14] Repatriation Commission v Smith [1987] FCA 260 at [23].Facts Following a medical examination on 4 August 1975, Mr Upston was employed by ACT Police from on or about 1 September 1975 to 18 October 1979.[15][15] Exhibit 6, ST67, folio 227; Exhibit 1, page 1. In 1978, Mr Upston claimed and was paid compensation in respect of an eye injury.[16][16] Exhibit 6, ST89, ST91, ST91.1, ST91.2, ST95 and ST95.1. From 19 October 1979 to 30 June 1995 he was employed by the AFP.[17][17] T17.4, folio 37 and ST414, folio 815. Between 30 September 1981 and 7 October 1981, a Commonwealth Heads of Government Meeting (CHOGM) occurred in Melbourne. Prior to this meeting, Mr Upston undertook a Response Team Members Course, R.T.M. 2/81, in Barton in the ACT.[18] A report was produced following completion of this course. The course included a component that related to rappelling from an aircraft and from a building. In the report, the column beside this objective, titled “achieved Yes/No”, was marked “N/A” in Mr Upston’s case.[19] In the “result” section of this report, Mr Upston is reported to have “qualified on all the weapons qualification shoots, but failed the Q.D.R and Final Exam”.[20] [18] Exhibit 6, ST117 and ST118.[19] Exhibit 6, ST117, folio 310.[20] Exhibit 6, ST117, folio 312; ST138, folio 353 refers. I note that Mr Upston referred to this training and the CHOGM in Melbourne in a document he created on 8 February 1983 –5. As a result of C.H.O.G.M., I was selected to attend the 6 weeks course at the Police College, Barton. The course included physical training, special weapons training and approx. 4 hours a week concentrated on self defence or martial art. Those members who successfully completed the course were given a certificate and graded (examined) on that form of self defence. Members were then advised to maintain their standard of physical fitness, as they may again be called upon to perform ‘Special Duties’.6. During the years ’80-’81, I was actively involved in the basketball competition conducted Sunday and Monday nights at the Canberra Show Ground…7. Shortly after returning from Melbourne (CHOGM), I broke a bone in my hand and was on leave for a period of 5 weeks…8. It may also be noted that whilst in Melbourne, I sought permission to attend training and was graded and received my next belt (kun)…[21] [21] ST142, folio 358. It is Mr Upston’s evidence that he was posted to Melbourne in the lead-up to the CHOGM meeting. Even though there is no direct evidence of this posting in the materials placed before the Tribunal, Comcare accepts that Mr Upston was in Melbourne in September 1981. I accept that is correct.

Decision

Reasons for decision

In conclusion, therefore, Mr Upston’s left knee osteoarthritis ailment does not meet the threshold for an ‘injury’ under the SRC Act.Decision The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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