Re Guiseppe Salafia and Australian Telecommunications Commission [1981] AATA 84 (17 August 1981)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: GUISEPPE SALAFIA
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. V81/258
Compensation

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Mr J.O. Ballard (Senior Member)

CATCHWORDS

Compensation - loss of right eye - ex tempore decision - costs

Commonwealth Functions (Statutes Review) Act 1981 s. 151

Compensation (Commonwealth Government Employees) Act 1971 s. 39 s. 37

HEARING

CANBERRA
17:8:1981

ORDER

For the reasons which were delivered orally on Thursday, 6th August 1981 in Melbourne and which are set out in the transcript of proceedings, the Tribunal decides:

(a) to set aside the determination in this matter of a delegate of the Commissioner of 19th October 1976, and the same is so set aside;

(b) in substitution therefor, to determine:

(i) the applicant suffered glaucoma of the right eye to which his employment by the Commonwealth was a contributing factor;

(ii) he has since lost the sight of his right eye and is entitled to compensation pursuant to s. 39 in the sum of $8,000;

(iii) he is entitled to medical expenses pursuant to s. 37

and the same is so substituted;

(c) to order the Commonwealth to pay the applicant's costs in these proceedings in accordance with Scale C in the County Court of Victoria; in the absence of agreement costs to be taxed by the Registrar or Deputy Registrar and it is so ordered.

DECISION

MR BALLARD: This is an application for a review of a determination of a delegate of the Commissioner for Employees' Compensation of 19 October 1976 under the Compensation (Commonwealth Government Employees) Act 1971. The matter was instituted as a reference for re-consideration by compensation tribunal and was transferred to the Administrative Appeals Tribunal by virtue of section 151 of the Commonwealth Functions (Statutes Review) Act 1981.

The determination in question denied liability for a condition of glaucoma of the right eye; it is not in issue that the applicant who was formerly a lines assistant with the Australian Telecommunications Commission has lost the use of his right eye wholly. At the hearing of the matter the claimant gave evidence and called Dr Poulier, a general practitioner; Dr Jones, a general practitioner; Dr Buccheri, a general practitioner; Dr Galbraith, an eye surgeon; Dr Stubbe, a consulting physician; Sir John Frew, a consulting physician and Dr Cairns the treating ophthalmologist. Telecom called Dr Luke Murphy, the consulting physician and Dr Genton, an ophthalmologist.

I have given careful thought to the proposition by counsel for the respondent that I should not rely on the evidence of Dr Cairns having regard to the fact that in a report dated 6 February 1979 he stated:

"The relationship between his original right retinal detachment and the trauma is a difficult one to establish. It is well known that trauma to the head and significantly direct trauma to the eye can cause retinal detachment, also the right retina when I first saw him showed signs of having been present for some time. It is quite possible that the head trauma could have at least precipitated the onset of detachment, there possibly having been some pre-existing weakness in the retina."

I have decided to accept Dr Cairns' evidence given to this Tribunal. He had one great advantage over all the other doctors in that he actually saw the eye that was lost. He was also a most impressive witness. On that basis I find as a fact, on the balance of probabilities, that there was a link between the pre-existing weakness in the retina, the trauma and the loss of sight of the eye.

I am not satisfied with the claim on the alternative ground of heavy work to a hypertensive, however, I do find as a fact that the claimant suffered a blow during the course of his employment and that the retinal detachment resulted therefrom and he lost the sight of one eye as a result.

Accordingly, he is entitled to compensation under sections 27 and 39 in the sum, subject to argument, of $8000. In addition to the $8000 under section 39 he is entitled to the medical expenses as determined by the delegate and costs on scale C in the County Court of Victoria.

AT 2.30 PM THE MATTER WAS ADJOURNED INDEFINITELY