Australian Telecommunications Commission v Burnett, A.R
[1990] FCA 757
•19 OCTOBER 1990
Re: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
And: APRIL ROSE BURNETT
No. G559 of 1989
FED No. 757
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)
HEARING
SYDNEY
#DATE 19:10:1990
Counsel for the Applicant: T. Rowles
Instructed By: Sparke Helmore and Withycombe
Counsel for the Respondent: J. Hanly
Instructed By: Anthony Ziade and Associates
ORDER
The appeal be dismissed.
The appellant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
I have been much assisted by the careful arguments of both counsel in this matter and by written submissions which they have furnished to the Court. During the course of the argument of the matter I have come to a firm conclusion as to what my decision should be. In these circumstances I do not propose to reserve that decision but to give it and my reasons immediately.
The appellant in this matter, The Australian Telecommunications Corporation, appeals from a decision of Mr M.D. Allen, a senior member of the Administrative Appeals Tribunal, in its general administrative division, which was given on 26 July 1989. In that decision the learned senior member set aside the determination of a delegate of the Commissioner for employees' compensation, which was dated 21 September 1987. He remitted the matter to the appellant with the direction that the matter should be further considered on the basis that at all relevant times since 8 July 1987 the appellant had been liable to pay compensation to the respondent for incapacity.
It is very clear from the abundant material in the appeal book that there were a number of issues agitated before the learned senior member in the proceedings before him, which clearly occupied a considerable amount of time. There was a great deal of medical evidence placed before him by way of reports and also by way of oral testimony.
Questions were clearly raised as to the credibility of the applicant, April Rose Burnett, in regard to her claims of incapacity resulting from her work, and also in relation to degrees of pain allegedly suffered by her. In the circumstances, I do not find it surprising that in his reasons the learned senior member dealt with a number of matters which had obviously been the subject of considerable contention in the course of those proceedings.
This matter comes before this Court, however, only on the basis that the decision of the learned senior member is claimed to have been vitiated by an error of law. The question of whether or not there was an error of law is in fact the only question that can arise on an appeal brought to this Court from such a decision.
In the course of the argument of the matter it has become possible for the alleged errors of law to be identified with considerable particularity. It is therefore unnecessary for me to deal in any great length at all with the facts of the matter which have been set out in considerable detail in the judgment under appeal.
Suffice it to say that there is no dispute as to the finding made by the learned senior member that as a result of repetitive manual operations involved in the work of the respondent with the appellant employer she came to suffer the well known syndrome described as carpal tunnel syndrome. It is quite clear that this problem resulted in an inability to perform her ordinary work and also required the attention of the medical profession.
Ultimately, as appears in the learned senior member's reasons, she came to operation as a result of this condition. Dr Claxton, her treating surgeon, operated upon her wrist to relieve this condition on 7 September 1987, performing an operation described as that of decompressing the relevant nerve. It is perfectly clear, and it is not contested, that the condition and the need for the operation was occasioned by the respondent's work.
The learned senior member, in paragraph 23 of his reasons, makes a precise finding of fact in this regard and there is no attack made upon that finding. The learned senior member made a further finding in paragraph 31 of his reasons, which has achieved significance in the argument before me, namely that the respondent "should have made a full recovery from her carpal tunnel syndrome by 7 December 1987, this apparently being a period of three months accepted in the evidence as necessary for her to recover from the post operative effects of the operation itself".
The respondent, after that period of time, however, continued to complain of pain and disability in the relevant arm. She had made other complaints, perhaps I should add, which were not accepted by the learned Tribunal as being work related and one can put them to one side.
In relation to her situation after the performance of the operation it is clear that a great deal of evidence was produced by each side in the litigation. There was very clearly a strenuous attack made upon the veracity of her complaints of ongoing pain in the relevant area of her body. The respondent was, as is not unusual in this type of litigation, made the subject of surveillance films. It is clear that this evidence and some of the evidence of investigators and of medical practitioners called in the case caused the learned Tribunal to find that the respondent was not in fact suffering from the degree of pain and disability that she alleged.
A not inconsiderable part of his judgment is concerned with this particular aspect of the case. It is his findings in this area which have led, to a large extent, to the submissions that have been put to this Court, regarding alleged errors of law.
The finding of relevant incapacity was made by the learned Tribunal in paragraph 32 of his reasons. It follows upon the finding in paragraph 31, to which I have already made reference, that the respondent should have made a full recovery from her carpal tunnel syndrome by 7 December 1987.
Paragraph 32 reads as follows:
"Equally apparent is the fact that it would be impractical for the applicant to return to any occupation involving repetitive movements of the hands and arms. It can thus be said the the applicant has lost the capacity to do certain tasks in the marketplace of which she was formally (sic) capable and this is sufficient to justify a finding of incapacity. See Arnotts Snack Products Pty Limited v Yacob 155 CLR 171 and Steggles Pty Limited v Vandenberg 163 CLR 321."
Paragraph 33 should also be cited, it reads as follows:
"The degree to which the applicant is partially incapacitated is, on the present evidence, unclear. This partial incapacity has been recognised by the respondent as the applicant has been offered employment described as "varied clerical duties", and I see no evidence as to why the applicant could not cope with that sort of work provided it was in a proper setting and due regard to her inability to engage in repetitive movements. The applicant has accepted the respondent's offer, however, no position has been forthcoming."
It is conceded that if the findings in paragraph 32 are not relevantly vitiated by an error of law that what appears in paragraph 33 and thereafter is sufficient to justify the decision of the learned Tribunal and the orders that he made. The question then is simply one of whether the findings in paragraph 32 are relevantly vitiated. In the course of argument the submitted errors of law were refined into two in number.
It was submitted on behalf of the appellant, firstly, that the findings in that paragraph were not supported by any evidence in the case. A finding made without evidence to support it is, of course, one that can be upset on the basis of error of law. Such error is not infrequently referred to compendiously as a "no-evidence" error.
I am satisfied that this submission fails. The paragraph speaks of the finding as being "equally apparent" with the finding previously made in relation to the recovery period from carpal tunnel syndrome operation. Clearly paragraph 32 is put, as it were, in contrast with the paragraphs that have preceded it.
There is considerable discussion in the material in the judgment which precedes these paragraphs as to medical evidence given by each side and as to the medical practitioners who have won or failed to win acceptance by the learned Tribunal. It is clear that the Tribunal accepted and placed great reliance upon the evidence of the treating doctor, Dr Claxton. Reference is also made to evidence having been given by Dr Champion. Dr Champion's evidence was given on behalf of the injured worker.
Dr Claxton at p 207 of the Appeal Book, in the course of a lengthy and detailed report to the respondent's solicitors, said, in relation to the respondent's suffering of the original carpal tunnel syndrome in respect of which he had operated, that:
"Once people have suffered over-use syndromes for conditions of any kind, it is best that they do not return to jobs involving constant repetitive, fine movements such as she would have to carry out doing the job that she was doing before her injury."
Dr Champion at p 213 of the Appeal Book, at the conclusion of a detailed consideration of the respondent's medical and working history, including, of course, the history of her carpal tunnel syndrome and the operation upon it, accepted that she had indeed suffered from such a syndrome and that she was suffering from, at the time of his examination, "residual features which are best interpreted as an occupational cervico-bracial disorder". He gave his reasons for that view; it is unnecessary for me to set them out here.
He then made certain findings under the heading "Degree of Disability, Fitness for Work and Prognosis". It may be noted that these findings were made as at 15 September 1988. He said:
"I suggest that she has some permanent loss of function in each upper limb, some of which is likely to be permanent, perhaps about 10% on the left and a little less on the right. I base this comment on the probability that in the long term there will be susceptibility to a recurrence or to exacerbation on attempts to return to work similar to that which she was doing when the symptoms developed. The judgment of permanent loss for efficient function is arbitrary and is a rather dubious concept and I make it purely for the pragmatic purposes of the medico-legal assessment. I expect there will be slow improvement in her symptoms if she continues in a sedentary lifestyle. She is not fit for the work for which she was formerly applied but would be able to do selected light duties, initially part-time."
The reference to these two passages in the evidence of medical witnesses who were clearly accepted by the learned senior member in my view puts paid to the submission that there was no evidence upon which the findings in paragraph 32 could have been made.
The second submission that was made was based upon s 43 of the Administrative Appeals Tribunal Act 1975. It is unnecessary for me to set this section out in full. It requires that the Tribunal make findings on material questions of fact when stating its reasons for a decision and that it make reference to the appropriate evidence on which those findings are based.
There are many decisions of the Court which indicate that this section is directory rather than mandatory and that findings of fact made by an essentially lay Tribunal should be not, as it were, subjected to a fine tooth comb in an endeavour to ascertain whether or not there may be some otherwise undisclosed error of law.
This does not of course detract from the situation that if an error of law is so identified then the decision must necessarily be set aside, even though it could perhaps have been justified on other grounds; Commonwealth Banking Corporation v Percival (1988) 82 ALR 54.
The attack upon the learned member's decision that is based upon s 43 amounts to a submission that the Tribunal has not made findings of fact necessary to base the ultimate finding of fact set out in paragraph 32 as to the incapacity of the applicant. In my view, difficulty has been occasioned in the case by paragraphs in the judgment of the learned senior member in which he deals with the issue of the current level of pain suffered by the respondent. I have already indicated that in my view the time spent in his judgment on this topic is no doubt related to the time spent in the case in relation to evidence called upon it.
Paragraph 29 of the judgment reads as follows:
"I further find that as a result of that carpal tunnel syndrome, which is now relieved, and a regional pain syndrome, however caused, there is still a degree of pain suffered by the applicant, although not to the extent as alleged by her and not to the extent that it would prevent her from working."
The reference to "a regional pain syndrome" is based upon evidence to be found in the Appeal Book, to which I do not find it necessary to make any direct reference. As to the attribution of a medical category to the pain allegedly suffered by the respondent after the successful carpal syndrome, the label was applied in some of the medical evidence to the suffering of pain after the period during which the immediate after-effects of the operation would have ceased to affect the respondent.
It is put, with some force, on behalf of the appellant that the learned senior member, after reviewing evidence bearing upon this aspect of the case, has expressly stated in this paragraph that he cannot attribute a precise cause to the pain comprised in the regional pain syndrome. Accordingly, it is put, he makes no finding of fact that that syndrome is relevantly related to the respondent's work. It is further put that without such a finding of fact there is demonstrably no basis for the finding of incapacity in paragraph 32, which finding founds the order made by the Tribunal.
There would be considerable force in this submission, which, indeed, might well bring the decision into an area where there was an appellable breach of the requirements of s 43, if there was a necessary and essential connection between the incapacity found in paragraph 32 and the regional pain syndrome that is the subject of discussion and finding in paragraph 29.
In my view, however, a reading of this judgment indicates clearly to me that the finding in paragraph 32 is quite independent of the question of the regional pain syndrome referred to in paragraph 29. There is no relevant finding of causal connection between that syndrome and the incapacity, for the very simple reason that the Tribunal did not base its finding upon any such connection.
The learned senior member's finding is independently based, in my view, upon the evidence such as that which I have quoted from the reports of Dr Claxton and Dr Chapman. It is in no way dependent upon the discussion which the learned senior member no doubt found it necessary to go into, having regard to the conduct of the case, on the question of pain suffered by the respondent in situations which quite apparently did not involve the performance of work related activities.
What the learned senior member has found is that, on the medical evidence, he is satisfied that, if the respondent were to undertake her pre-operative work, she would demonstrate a loss of the capacity to which he refers in paragraph 32.
There is no absence of findings of fact in my view which would make this decision vulnerable as not fulfilling the requirements of s 43 as they have been interpreted by the Courts.
I am satisfied therefore that the attack made upon this decision for error of law fails. I accordingly dismiss this appeal and I order that the appellant pay the respondent's costs.
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