Holt v Comcare [2002] FCA 1484

FEDERAL COURT OF AUSTRALIA

Holt v Comcare [2002] FCA 1484

No question of principle Administrative Appeals Tribunal Act 1975 (Cth) subss 44(2A), (2B) Australian Telecommunications Corporation v Davis (1991) 30 FCR 467 cited Gilbert v Repatriation Commission (1989) 86 ALR 713 cited Apthorpe v Repatriation Commission (1987) 77 ALR 42 cited Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484 cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

VIVIENNE HOLT v COMCARE NO S 58 of 2002 O'LOUGHLIN J 28 NOVEMBER 2002 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 58 OF 2002

BETWEEN: VIVIENNE HOLT

APPELLANT

AND: COMCARE

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 28 NOVEMBER 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal which costs are to be taxed in default of agreement. 3. Each party pay her and its costs in respect of the notices of motion respectively filed by the parties in these proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 58 OF 2002

BETWEEN: VIVIENNE HOLT

APPELLANT

AND: COMCARE

RESPONDENT

JUDGE: O'LOUGHLIN J

DATE: 28 NOVEMBER 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The appellant in these proceedings is Mrs Vivienne Holt ("Mrs Holt"), who has challenged a decision of the Administrative Appeals Tribunal ("the Tribunal"). In that decision, the Tribunal upheld an earlier decision of the respondent, Comcare, that concerned Mrs Holt's state of health. Comcare had concluded that it was no longer liable to pay compensation to Mrs Holt, pursuant to ss 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth), in respect of any aggravation of her stress-related asthma. 2 Mrs Holt is presently fifty-four years of age or thereabouts. She was born and educated in Adelaide. She left school having attained her Intermediate Certificate and, after working for an accounting firm for a short period of time, she worked for a construction firm in a clerical capacity for approximately ten years. In November 1971, Mrs Holt married; her husband was then a member of the Australian Public Service and had been so since August 1965. She later joined the Public Service in Adelaide in July 1973 and worked in the Department of Social Security as a clerical assistant Grade 1. She was, in due course, accepted as a permanent officer and she was also accepted into the superannuation fund. 3 In February 1974, Mrs Holt and her husband were transferred to Canberra. He was posted as an Acting Class 5 officer in the Department of Aboriginal Affairs and she as a clerk, Class 1 in the Department of Health. However, within a relatively short time, she was promoted to an Acting Clerk Class 2/3 dealing with Ministerial correspondence, briefs and submissions. 4 At this stage, it is appropriate to address Mrs Holt's medical history. The Tribunal recorded in its reasons that, during her childhood, Mrs Holt would become "wheezy and breathless", without apparent cause. That condition could not, however, be connected to any particular activity such as physical exercise. Mrs Holt never consulted a doctor in Adelaide about asthma, nor did she have any form of treatment for her "wheeziness" or her breathlessness. Indeed, she was able to lead a reasonably active life involving herself in canoeing, kayaking and walking. The Tribunal recorded that, at the time of her appointment to the Public Service, she was examined by a Commonwealth Medical Officer and her mild asthma was not seen as a deterrent. Nevertheless, a Benefit Classification Certificate was issued under the Superannuation Act 1922 (Cth) as a consequence of her asthma and a term of probation was fixed at twelve months. 5 Soon after her arrival in Canberra, her general practitioner, Dr Federoff, diagnosed Mrs Holt as suffering from bronchitis; Ventolin was prescribed for her. It was her evidence that, thereafter, her asthmatic symptoms worsened and by March 1975, she was using Ventolin more and more frequently but with less and less effect. On Saturday, 23 March 1975, she collapsed at home in the evening and was admitted to the Canberra Hospital suffering from an acute asthmatic attack with pulmonary arrest. She was discharged from hospital on 5 April after a stay of thirteen days, but was readmitted a fortnight or so later on 20 April 1975. The duration of her second visit was not recorded in the reasons of the Tribunal. She fell ill again in the following year. On 1 March 1976, she was diagnosed as a suffering from pneumonia. 6 Mrs Holt prospered in the Public Service but, unfortunately, she suffered some matrimonial difficulties. She and her husband separated in 1982 but were reconciled in May 1985. In the meantime Mr Holt had been "invalided out" of the Public Service in March 1984. He became entitled to compensation payments from Comcare and that situation was still operating at the time of the Tribunal's decision. 7 In April 1985, Mrs Holt was hospitalised again with another asthma attack. This led to her treating physician, Dr Faunce, recommending that she should retire from the Public Service on medical grounds. On 3 May 1985, she was examined by a Commonwealth medical officer and on 6 June 1985, Mrs Holt lodged a claim for compensation for "aggravation of severe chronic asthma" as a result of: "… constant changes of climate due to continuous (weekly) travel and severe stress due to the workload and responsibilities of the duties". 8 In answer to a question in the claim form: "Have you previously suffered from the disease?"