Australian Postal Corporation v Collier, L

[1992] FCA 705

JUDGMENT No. ~.QS..J

Distribution not reauird

COURT OF AUS-	)
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-	1
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No. VG 274 of 1991

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from the General D i v i s i o n o f t h e Administrative Appeals Tribunal.

B E T W E E N :

m

POSTAL CORPORATION

Applicant

A N D

LYNDON COLLIER

Respondent

KEELY J
MELBOURNE

Note:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court rules.

18 SEPTEMBER 1992

MINUTES OF ORDER

RS THAT:

1.    The application be dismissed.

1. The applicant pay to the respondent his costs.

General D i s W u t i o n not recruired

THE COURT OF AUSTRALIA )

1

CT REGISTRY	1	No. VG 274 of 1991
1

DIVISION	1
9N APPEAL from the General D i v i s i o n o f t h e Administrative Appeals Tribunal.
B E T W E E N :
THE AUSTRALIAN POSTAL CORPORATION

Applicant

A N D

m D O N CQLLIER

Respondent

REASONS FOR -NT

(Ex tempore reasons for judgment - revised from transcript)

18 September 1992 KEELY J

During the luncheon adjournment I read all of the passages in the appeal book referred to by Mr McInerney of counsel on behalf of the applicant Postal Commission. In particular I read carefully the passages upon which he relied in challenging the Tribunal's findings in paragraph 36 of the Tribunal's reasons for decision (appeal book 277). In my opinion those findings are supported by the cross-examination of Pease and in particular by the following passages (appeal book 214 and 215.)

"Now, if you accept that that is so, do you not think on the balance

of probabilities that the previous episodes, the previous episodes at work are not playing a significant role in giving rise to his symptoms of this 1990 incident?---Yes, I waen't able to get that detail of the history from him unfortunately. But - the certainly could not exclude the possibility that there was some work related injury component of it in his presentation.

If I might press you just a little on that, doctor, and that is to say that if you have regard to the history I have put to you, that doing the best we can and talking along the balance of probabilities, that the previous episodes at work are playing a significant role or giving a material contribution - significant role in producing the aymptoma that aroae in May 19907---They could be contributing to it if there is scar tissue. A lot of hypothetical inference is being made which I find quite difficult to be precise about.

But what we come back to is the fact that it keeps being in the same part of the body and it is significant, is it not?---Yes. I

understand, yes. The fact that the symptoms appear to be in the same

spot I think is of significance.

And that being so do we not conclude on the balance of probabilities that what we are aeeing ia symptoms that arise by reason of previous pathology damaged scar tissue that was formed in earlier incidents?-- -It could be, yes.

Yes. He has given evidence also that the day before, the day before early in the morning, early Saturday morning when he was working, he worked the nightshift, he experienced aching in his back which remained throughout the day Saturday and throughout the day Sunday until this incident occurred in the shower?---Yes.

And he said that aching came on after lifting some parcels from the bottom of a mail bag in which he had to bend completely?---Yes.

And that aching was still present when the intense pain or the severe

pain whilat he was drying himself after the shower?---Yes.

If you accept the accuracy of that history do you not again conclude that it is probable that the work incident giving rise to the aching did make him more vulnerable to the incident in the shower?---It could have. Sorry to be difficult.

Well, could I put it to you this way: that it would be an extraordinary coincidence if in the incident in the ehower; after having the ahower, he sustained low back pain on the right side with trouble straightening when he had a history of having done so beforehand?---Yea.

Without that incident being related to those earlier incidences?--- that is a pollsibility, yes."

It is true that in re-examination, especially at pages 217-218 of the appeal book, Mr Pease gave evidence apparently of greater assistance to the Postal Commission. That included the following passage (appeal book 217):

"And when one operates on people with spinal disorders as I do a l l the t i m e it is very uncornmon t o see any scar t i s s u e except where the patient has had a previous operation."

However, it was a matter for the Tribunal to decide what parts, if any, of Pease's opinion evidence would be accepted by it. It was not bound to accept: that evidence given in re-examination. In any event, it was not bound to prefer his evidence to that given by Dr. Bongiorno and by Mr Silley. In paragraph 40 of its reasons (appeal book 279) the Tribunal expressly accepted the evidence of those doctors as to scar tissue.

In my opinion, on the findings made by the Tribunal on the

evidence, it was open to it to conclude, as it did, that the period of incapacity the subject of this appeal (i.e. 21/5/1990 to 4/6/1990) resulted, at least in part, from the compensable injury in 1978.

During the short adjournment that has occurred since the	resumption of the hearing after lunch, I have read pages 164-
182 of the appeal book; they contain part of the cross- examination of the employee, Mr Collier. The matters raised in those passages were matters for the Tribunal to consider
and doubtless were considered - both the questions and the
answers together with the demeanour of the witness. It follows that the appeal will be dismissed.

I certify that this and the three (3)

preceding pages are a true copy of the

Reasons for Judgment of Mr Justice Keely.

Datedi 18 September 1992

Counsel for the Applicant	: Mr M. McInerney
Solicitors for the Applicant :	Sparke Helmore Withycombe
Counsel for the Respondent	: Mr. S. Spittle
Solicitors for the Respondent :	McMullin, Coate h Co.

Date of Hearing	:	18 September 1992
Date of Judgment	:	18 September 1992