Comcare Australia v Rowe

REASONS FOR JUDGMENT 1 The respondent worked with the Australian National Railways until 31 October 1997 when his employment was terminated by compulsory redundancy. In 1987 the appellant ("Comcare") accepted that the respondent, in the course of his employment, had suffered an ear injury and hearing loss for which Comcare was liable to pay compensation. After his redundancy the respondent claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") in respect of a partial incapacity for work as a result of his ear injury and hearing loss. The compensation claimed was for the period since 31 October 1997. 2 The respondent's claim was rejected by Comcare, but on the respondent's application for review of that decision the Administrative Appeals Tribunal ("the AAT") set aside Comcare's decision and substituted its decision, which was that: "…since 1 November 1997 the applicant has continued to be partially incapacitated for work and is entitled to ongoing payments of compensation in respect of that partial incapacity; and remits the matter to Comcare for assessment of the appropriate level of compensation payable to the applicant." 3 A critical finding made by the AAT in the applicant's favour in relation to his partial incapacity for work was set out at [29] of its decision: "As to the question of the applicant's continuing ability to work, we are satisfied, on the whole of the evidence, that the applicant's hearing loss and tinnitus preclude him from working in certain occupations, and limit his ability to sell his labour on the open market. We are satisfied on the evidence, and find as a fact, that as and from 1 November 1997 the applicant has a partial incapacity for work, and is entitled to incapacity payments on that basis." 4 Comcare has appealed to the Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) on the ground of error of law. It contends that the AAT failed to discharge its function according to law by failing: · to address and make findings in respect of each of the factual matters that had to be determined in order for the AAT to decide that the respondent was incapacitated for work; · to address Comcare's submission to it in respect of those factual matters. 5 The respondent did not dispute Comcare's contention that the AAT failed to make findings in respect of each of the requisite factual matters but contended that, as the AAT accepted the respondent's evidence, the Court is able to "fill in the gaps" by making the necessary findings. 6 The respondent claimed compensation under ss 14 and 19 of the Act on the basis that since 31 October 1997 he has been incapacitated for work as a result of an injury suffered in the course of employment. Section 4(9) of the Act provides: "A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened." 7 It is common ground that the respondent's claim was not for total incapacity under s 4(9)(a). Accordingly, if his claim was to succeed it must fall within s 4(9)(b). In my view Comcare was correct in contending that s 4(9)(b) required the AAT to address each of the following questions: (a) When did the "injury" happen? (b) What was the work in which the employee was engaged by the Commonwealth or a licensed corporation immediately before the injury happened? (c) What was the "level" at which the employee was engaged to work immediately before the injury? (d) Is the employee incapacitated from engaging in work at the "same level" at which he or she was engaged to work by the Commonwealth or a licensed corporation? 8 A further question may also arise on the facts of a particular case as to whether the incapacity relied upon is an incapacity to engage in "any other work" engaged in immediately before the injury happened. The meaning those words are intended to have, and the work they are intended to do, in s 4(9)(b) is far from clear. 9 Further, as was pointed out by counsel for the respondent a claim for an injury causing hearing loss might fall within the definition of a "disease", which is defined in s 4(1) to include an "ailment", which is defined in s 4(1) as meaning, inter alia, "any physical…ailment, disorder…[or] defect". If the respondent was found to have suffered a "disease" s 7(4) would be relevant. The sub-section provides: "For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when: (a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee; whichever happens first." 10 The respondent did not contend that the question of s 4(9)(b) was not raised by the cases put by the parties before the AAT. Accordingly, the above matters were required to be addressed by the AAT and, if applicable, made the subject of findings in order for the AAT to arrive at a conclusion that the respondent was entitled to compensation under ss 14 and 19 of the Act. It is clear that, on a fair reading of its decision, the AAT did not address and make findings in respect of those matters. 11 Comcare put a detailed submission to the AAT based on s 4(9)(b), which the AAT also failed to address. In substance, the submission was that the respondent's continuing employment from 1987 to 1997, notwithstanding his hearing loss, demonstrated that he was not incapacitated for work within the meaning of s 4(9)(b). 12 The submission related to a matter of substance and, if accepted, was capable of affecting the outcome of the case. It is well established that the failure by the AAT to address such a submission can be an error of law: see Dennis Willcox v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-277, Repatriation Commission v Rogers [1999] FCA 489 at [13] and Repatriation Commission v Tiernan [2001] FCA 519 at [12]. 13 In my view the AAT erred in law in failing to address and make the findings required to be made under s 4(9)(b) before it could conclude that the respondent was incapacitated for work on or after 1 November 1997, and was therefore entitled to compensation under ss 14 and 19. The AAT also erred in law in failing to address Comcare's submission in relation to the operation of s 4(9)(b) in the circumstances of the present case. 14 The present case is not one in which the Court is able to, or should , "fill in the gaps" by acting on the findings made by the AAT or the evidence it accepted. The matters of fact raised by s 4(9)(b) in the present case are matters for determination by the AAT as the arbiter of fact, rather than the Court. 15 Accordingly, the decision of the AAT in relation to the respondent's partial incapacity is to be set aside and that matter is to be remitted to the AAT to be determined in accordance with law. As Comcare accepted that it was appropriate for the parties to bear their own costs no order is to be made as to costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.