Australia: What's News: Decisions for the fortnight ending 13 April 2012

Last Updated: 22 April 2012
Article by Michael Hodgson

Focus: Decisions for the fortnight ending 13 April 2012
Services: Insurance
Industry Focus: Insurance

Decisions for the fortnight ending 13 April 2012.


Fox and Comcare [2012] AATA 204 (5 April 2012)

The Tribunal was convened to determine whether Comcare (the Respondent) was liable for Ms Fox's (the Applicant) psychological condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The central issue was whether the Applicant's condition ought to be excluded by operation of section 5A(1) of the Act.

Ultimately, the Tribunal was satisfied that the Applicant had sustained an injury that was significantly contributed to by her employment and that her condition did not arise as a result of reasonable administrative action taken in respect of her employment. As such, the Tribunal set aside the Reviewable Decision and instead decided that the Respondent was liable for the Applicant's condition.

Kermode and Military Rehabilitation and Compensation Commission [2012] AATA 188 (2 April 2012)

The issues before the Tribunal were whether the Military Rehabilitation and Compensation Commission (the Respondent) was liable for Mr Kermode's (the Applicant) psychological condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). If the Tribunal found the Respondent to be liable for the Applicant's condition, it was also required to consider whether the Applicant was entitled to compensation under sections 16, 19, 24 and 27 of the Act.

By way of background, the Applicant served as a steward on board HMAS Melbourne when it collided with another vessel on 10 February 1964. This collision resulted in the loss of 82 lives. In April 1997, the Applicant claimed compensation for post-traumatic stress disorder (PTSD), said to have arisen as a result of the collision. In July 1997, the Respondent accepted liability for the Applicant's PTSD, as well as for claustrophobia and alcohol abuse and paid the Applicant weekly incapacity benefits and compensation for medical expenses.

On 17 January 2007, the Respondent determined that the Applicant had no present entitlement to compensation for medical expenses, incapacity payments, lump sum permanent impairment compensation or households and attendant care services pursuant to sections 16, 19, 24 and 29 of the Act, respectively.

Upon reconsideration, the Respondent, in a Reviewable Decision, revoked the original Determination of July 1997 in which liability was accepted for the Applicant's condition. The Applicant requested review for this Reviewable Decision.

The Tribunal was satisfied that the Applicant suffered from PTSD and claustrophobia as a result of the collision in 1964. Whilst the subsequent common law legal proceedings were likely to have worsened the Applicant's condition, the Tribunal was satisfied that the Applicant was already incapacitated as a result of his PTSD and claustrophobia conditions. As such, the Tribunal was of the view that the July 1997 Decision to accept liability should not have been revoked and that the Respondent remained liable to pay incapacity benefits to the Applicant following the legal proceedings.

The Tribunal also found that the Applicant had not been suffering from alcohol abuse since he had been diagnosed with diabetes approximately 10 years ago. As such, the Tribunal considered that the Respondent was not liable for this condition.

The Tribunal were further satisfied that the Applicant had suffered a 10% level of permanent impairment due to his PTSD and claustrophobia conditions, and that the Respondent was liable to pay compensation for non-economic loss.

On the basis of the above, the Tribunal set aside the Reviewable Decision and instead decided that the Respondent was liable under sections 14, 16, 19, 24 and 27 of the Act for the Applicant's PTSD and claustrophobia conditions. The matter was remitted to the Respondent for calculation of the compensation payable to the Applicant.

Practice and Procedure

No decisions.


No decisions.


No decisions.

Section 6A: Unintentional Consequences

No decisions.

Exclusions and Reasonable Administrative Action

Fox and Comcare [2012] AATA 204 (5 April 2012)

The central issue was whether the Applicant's condition ought to be excluded by the operation of section 5A(1) of the Act. The Applicant was employed by the Department of Education, Employment and Workplace Relations (the Department) when she lodged a claim for compensation for a psychological condition said to have arisen as a result of being bullied and harassed at work. The Respondent denied liability in respect of this condition.

The Tribunal noted that the Department had experienced a number of changes including merging with another department and implementing a new government policy. Following a number of administrative changes, witnesses indicated that the working environment became increasingly difficult, and two managers engaged in ongoing, tense, 'professional arguments'.

At the hearing, the Respondent identified six factors that it claimed to have significantly contributed to the Applicant's condition, and contended that these factors fell within the meaning of 'reasonable administrative action'.

With reference to the recent Full Court case of Commonwealth Bank of Australia v Reeve [1], the Tribunal found that each of the six factors involved 'operational action' that concerned the everyday work duties of the Applicant, as opposed to administrative action taken in respect of the Applicant's employment. The Tribunal also held that a conversation in which the possible transfer of the Applicant to a different department was discussed was not administrative action, as no formal action had been decided or taken.

Ultimately, the Tribunal was satisfied that the Applicant had sustained an injury that was significantly contributed to by her employment and that her condition did not arise as a result of reasonable administrative action taken in respect of her employment. As such, the Tribunal set aside the Reviewable Decision and instead decided that the Respondent was liable for the Applicant's condition.

Journey Claims

No decisions.

Notice Provisions and Time limits

No decisions.

Recovery of compensation

No decisions.

Entitlement to Benefits

No decisions.

Aids and appliances

No decisions.

Household assistance

No decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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