Comcare v Caldwell [2008] FCA 2015

FEDERAL COURT OF AUSTRALIA

Comcare v Caldwell [2008] FCA 2015

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A Comcare v Eames (2008) 101 ALD 90 applied Weigand v Comcare Australia (No 2) (2007) 94 ALD 154 referred to COMCARE v PHILLIP CALDWELL

ACD 18 of 2008

PERRAM J

15 DECEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY ACD 18 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER J W CONSTANCE AND DR M D MILLER AO

BETWEEN: COMCARE

Appellant

AND: PHILLIP CALDWELL

Respondent

JUDGE: PERRAM J

DATE OF ORDER: 15 DECEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The orders of the tribunal made on 30 May 2008 be set aside. 3. The matter be remitted to the tribunal as originally constituted. 4. The procedure to be adopted by the tribunal is for it to determine. 5. Each party pay their own costs of the appeal prior to 17 July 2008. 6. The applicant pay the respondent's costs from 17 July 2008 to 14 December 2008. 7. Each party pay their own costs of today.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY ACD 18 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER J W CONSTANCE AND DR M D MILLER AO

BETWEEN: COMCARE

Appellant

AND: PHILLIP CALDWELL

Respondent

JUDGE: PERRAM J

DATE: 15 DECEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal brought by Comcare pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Comcare had previously determined to deny its liability to the respondent, Mr Caldwell, on 30 November 2005. On 24 April 2008 the Tribunal came to a different view and made a determination in his favour. That followed an extensive hearing which took place on 4, 5, 6, 28 February and 4 April 2008. The Tribunal made orders in Mr Caldwell's favour on 24 April 2008 which were entered on 30 May 2008. At the hearing, one of the principal issues was whether the condition he suffered from was a consequence of "disciplinary action". 2 The circumstances of the claim were that Mr Caldwell was involved in an accident on 3 April 2002 when he was performing an electrical switching operation at a power substation. In the course of doing so he loosened some "tumblers". This caused a "flashover" as a result of which he suffered a serious electrical shock which knocked him down and rendered him unconscious. As it happened, Mr Caldwell was not authorised to undertake the procedure which resulted in the flashover. 3 Immediately following the accident on 3 April 2002, Mr Caldwell was taken to hospital, and in the weeks which followed he met with his employer's doctor and was interviewed in relation to the accident by various officers of his employer ActewAGL. He was asked to provide a written statement to its Switching Review Committee which he did. That committee produced a report into the accident which was amended to take account of Mr Caldwell's statement. On 30 May 2002 Mr Caldwell received a formal letter from his employer informing him of the action which would be taken against him. 4 The injury about which Mr Caldwell made complaint was not for any physical harm caused by the electrical flashover on 3 April 2002 but rather psychological problems which the Tribunal determined should be treated as having commenced on 23 December 2003. At the time of the Tribunal's decision, s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") defined "injury" relevantly in these terms: (a) a disease suffered by an employee;