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, 42Cases
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
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.
Mr Upston submitted a further claim, clarifying the injury for which…
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- AGLC
- Upston and Comcare (Compensation) [2021] AATA 2378
- Case
- [2021] AATA 2378
- Decision Date
CaseChat Overview and Summary
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.
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