Comcare v Calipari [2001] FCA 1534

FEDERAL COURT OF AUSTRALIA

Comcare v Calipari [2001] FCA 1534

COMCARE v FRANK CALIPARI A26 of 2001 FINN J CANBERRA 8 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A26 OF 2001

BETWEEN: COMCARE

APPLICANT

AND: FRANK CALIPARI

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 8 NOVEMBER 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be allowed. 2. The decision of the Administrative Appeals Tribunal dated 27 April 2001 be set aside. 3. The matter be remitted to a differently constituted Tribunal to be heard and determined again. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A26 OF 2001

BETWEEN: COMCARE

APPLICANT

AND: FRANK CALIPARI

RESPONDENT

JUDGE: FINN J

DATE: 8 NOVEMBER 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 This is a regrettable proceeding. The respondent, Frank Calipari, has in effect conceded - and rightly so - that the Administrative Appeals Tribunal ("the Tribunal") committed an error of law in applying the provisions of s 14(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") to the circumstances giving rise to his claim under that Act for compensation for a workplace-related injury. The only real issue between the parties is whether, notwithstanding the error made, only one result could have been reached by the Tribunal so that a remitter of it to the Tribunal would be futile.

The Error of Law 2 Section 14(1) of the SRC Act creates a liability in Comcare to pay compensation to employees to who the Act applies in respect of injuries suffered which result in death, incapacity for work, or impairment. Section 14(3) limits that liability in the following way: "Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment." 3 Provisions of this type employing the "serious and wilful misconduct" formula have a long history in workers' compensation legislation: see eg Johnson v Marshall, Sons & Co Ltd [1906] AC 409. For present purposes I would note that the word "serious" in the formula describes the misconduct in question and not the actual consequences of it. Nonetheless, because the s 14(3) disentitlement arises where the injury is caused by the misconduct it is well accepted that the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury: see Johnson v Marshall, Sons & Co Ltd, at 416. 4 On occasion judicial and scholarly exegesis of the formula has applied the term "serious" not only to the misconduct in question but also to the injury the risk of which is created or increased by the misconduct. So in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases 60-785, for example, Green CJ in paraphrasing observations in several earlier decisions (including Marshall's case) observed that for conduct to amount to serious and wilful misconduct, "it must [inter alia] be such as to give rise to an immediate risk of serious injury" (emphasis added) ibid, at 74,797; see also Richards v Faulls Pty Ltd [1971] WAR 129 at 131-132. This usage is unexceptionable if it is understood as signifying no more than the converse of trivial injury. If it is intended to signify more than that and to postulate a positive requirement, it can find no justification in the terms of the statute itself nor in the general run of authoritative expositions of the formula. The respondent concedes as much. 5 In the present matter the Tribunal adopted and applied the formula used by Green CJ in Hills' case, and in consequence required that "a risk of serious (being "very considerable") injury" be apparent. I should add that it equated "serious" with "very considerable" in reliance upon a like equation made in an earlier Tribunal decision that considered whether, notwithstanding that an injury was caused by an employee's serious and wilful misconduct, the employee nonetheless should not be disentitled to compensation because, in the language of s 14(3), the employee had suffered "serious and permanent impairment". There is an obvious irony in the present matter in so using that decision on the express words of s 14(3). 6 Having so designated the risk required to be shown, the Tribunal was not satisfied that Mr Calipari's misconduct was such as to disentitle him under s 14(3) to compensation for his work-related injury. In so doing it applied the wrong test and committed an error of law.