Comcare v Laidlaw, Gregory Keith [1997] FCA 1009

FEDERAL COURT OF AUSTRALIA

WORKERS COMPENSATION - meaning of injury - whether disease and injury mutually exclusive under the Act - injury resulting from disease aggravation - Tribunal's failure to apply s7(6) an error of law - for the purposes of s7(6) disease and injury are mutually exclusive - Safety Rehabilitation and Compensation Act 1988 (Cth) s4, s7(6).

Zickar v MGH Plastic Industries Pty Ltd (1996) 140 ALR 156 (referred to) Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 (followed) Comcare v Porter (1996) 138 ALR 469 (followed) Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 (approved) Ilsley v Wattyl Australia Pty Ltd, Full Federal Court, unreported, 14 May 1997 (approved) COMCARE (Applicant) v GREGORY KEITH LAIDLAW (Respondent) ACT G18 of 1997 FINN J CANBERRA 12 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) G 18 of 1997

) ) GENERAL DIVISION )

BETWEEN: COMCARE

Applicant

AND: GREGORY KEITH LAIDLAW

Respondent

JUDGE: FINN J PLACE: CANBERRA DATED: 12 SEPTEMBER 1997

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. That the appeal be allowed. 2. That the decision of the Tribunal dated 21 February 1997 be set aside. 3. That the matter be remitted to a differently constituted Tribunal for consideration of the application of subsection 7(6) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") to the evidence before the Tribunal. 4. That the Tribunal's further consideration of the matter be undertaken on the basis of the evidence already presented to the Tribunal. 5. That the Tribunal's further consideration of the matter be conducted on the basis that the findings already made by the Tribunal in relation to subsection 7(7) of the Act stand. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.