Australian Telecommunications Corporation v Lambrouglou, S.
[1991] FCA 233
•7 May 1991
4 GENERAL DISTRIBUTION NOT REOUIRED
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY NO. VG 411 of 1989 1
GENERAL DIVISION 1 ON APPEAL from the General Division of the Administrative
Appeals Tribunal constituted by Mr. J. Handley, Senior Member
B E T W E E N :
A U S T R A L I A N TELECOMMUNICATIONS CORPORATION
Applicant
A N D :
SOULTANA LAMBROGLOU
Respondent
7 MAY, 1991 KEELY J. REASONS FOR JUDGMENT
This is an appeal by the Australian Telecommunications Corporation ("Telecom") from a decision of the Administrative Appeals Tribunal ( "the Tribunal" ) . Ground (vi) of the amended notice of appeal, filed on 21 December 1990, was not pursued. The other five grounds of appeal fell into two categories. Grounds (i) and (ii) dealt with whether the employment contributed to the occurrence of the infarction on 1 July 1986. Grounds (iii), (iv) and (v) related to whether the applicant was dependent upon her husband, Mr. Lambroglou, (the deceased) at the time of his death.
Mrs. Lambroglou was married to the deceased, who was a
cleaner employed by Telecom from 1973 until 1986. The Tribunal found that he suffered a myocardial infarction ("the infarction") on 1 July 1986. He died on 2 August 1986, aged 62 years, "as a consequence of complications occasioned by the infarct" - as was conceded by Mr. J. Lenczner, of counsel, on behalf of Telecom (transcript p. 6). Mrs. Lambroglou on 25 February 1987 applied for compensation in respect of her husband's death. That claim was rejected by a determination, made by the Delegate of the Commissioner for Employees' Compensation ( "the delegate" ) , dated 2 September 1988. That determination was reconsidered by the delegate who decided on 26 October 1988 that he would not "vary [his] determination of
2 September 1988".
By notice dated 4 November 1988 Mrs. Lambroglou applied to review the latter determination by the delegate. That application was heard on 7 and 8 September 1989 by the Tribunal, which on l December 1989 gave its decision, setting aside the determination of the delegate. This appeal is from that decision.
Ground (i) was in the following terms:- "(i) No evidence was adduced before the Tribunal from which the Tribunal could make the findings or from which the Tribunal could infer any of the findings set out in paragraphs 2A, B, C and E, namely:
A. That the Deceased:-
(i)
Walked, climbed, lifted and exerted himself when using floor scrubbing machines and a vacuum cleaner;
(ii)
Suffered from emotional stress by driving himself from the workplace at Kings Way, South Melbourne to Richmond to attend his Doctor in the presence of chest pain on the morning of the infarct.
(i)
The emotional stress of change of work location;
(ii)
The undertaking by the Deceased of the activity of driving himself from the workplace in Kings Way, South Melbourne to Richmond to attend his Doctor;
were matters which aggravated the Deceased's coronary artery disease precipitating acute myocardial infarction which ultimately resulted in his death.
C.
The fact that the Deceased drove himself from the workplace in Kings Way, South Melbourne to Richmond to attend his Doctor contributed to the occurrence of the infarct or its extent.
E.
That the Deceased's general history of employment as distinct from the specific incidents of 30th June 1986 and 1st July 1986 had contributed to the occurrence of the infarct.
The Tribunal had regard to each of the said
C and E in deciding that the Deceased's findings referred to above in paragraphs A, B,
employment with the Applicant contributed to
his death and that finding was necessary before the Tribunal could determine that the Respondent was entitled to compensation."
(There was no paragraph D in the amended notice of appeal.)
In the course of the hearing, which occupied three days, Mr. Lenczner made a very detailed examination of the transcript of oral evidence and of the other evidence before the Tribunal and submitted that there was no evidence upon which it was open to the Tribunal, as a matter of law, to make the findings referred to in paragraphs A, B, C, and E. The appeal from the Tribunal to this court is only on a question of law. The "Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (Administrative Appeals Tribunal Act 1975 S. 33(l)(c)).
Having considered carefully the material before the Tribunal and the submissions of Mr. Lenczner and of W . A. Larkin, of counsel, on behalf of Mrs. Lambroglou, in my opinion it was open to the Tribunal to make each of the findings referred to in paragraphs A, B and C, set out above.
As to the work performed by the deceased (see sub- paragraph A(i) in ground (i) above), Mr. Kalemkeridis gave evidence as to what were his "normal work duties" as a cleaner at the Kingsway building, and that the deceased had been sent
by Telecom to that building "to change [work] with" him. That "normal work" as a cleaner was described by Mr. Kalemkeridis
as including the following:-"My work was to start in the morning to clean the toilets, mop, then the stairs, mop again ... to clean the sink, ... the mirror and the toilet ... [cleaning with Ajax and a cloth] the walls and the tiles ..."
The work included mopping the floor of the men's toilet with a mop and a bucket of water. It was his duty to also put into "a big sack" the rubbish from each floor which had been
collected by the female cleaners. Mr. Kalemkeridis suggested that the reason for that work being done by the male cleaners was because the union considered that the work was too heavy for the female cleaners; that work included lifting the big sacks of rubbish to about shoulder height and putting them into a trolley.
As to whether it was open to the Tribunal, as a matter of law, to find that the work performed by the deceased "contributed to his death" (ground of appeal (i)A(i)), the Tribunal quoted, and obviously accepted, the following evidence of Dr. Dortimer:
"... he was working in the very beginnings of his
infarction ... the infarct chest pain which occurred at 10.00 was clearly threatened the day before and it is very likely that he was in a situation in that early morning where he was teetering on the brink of either falling into a major irreversible infarct or potentially being able to be saved from that if one had the means to save it. But clearly in those very vulnerable few hours prior to the infarct, I believe that by doing manual labour he aggravates his
will occur." condition and he makes it more likely that infarction
In my opinion it was open to the Tribunal to accept that evidence.
As to sub-paragraph B(i) in ground (i) above, in my opinion there was evidence upon which the Tribunal could find that Mr. Lambroglou was suffering emotional stress as a result of his change of work location. On the evidence of Dr. Dortimer and Dr. Rosenbaum (see, for example, appeal book pages 99 & 110) it was also open to it to find that that emotional stress "aggravated his coronary artery disease precipitating an acute myocardial infarction". Brief reference will be made to some of the evidence as to the emotional stress suffered by the deceased as a result of the change in his work location.
There was evidence from Mrs. Lambroglou that on the evening of 30 June 1986 (i.e. the evening before the day of the infarction) the deceased was "upset and worried" because of the change in his work location which had occurred that day. As the Tribunal said in its reasons for decision:
"Maria Giannis, the sister-in-law of the deceased, said that . . . On the day before the heart attack, at her house, he was seen to be rubbing his chest and arm and said that he had tightness and heaviness in the chest. The deceased had said to her that he was upset because he had been transferred to another building by [Telecom], and he was angry and depressed whilst he was saying this. She said that she had frequently seen him rub his left arm prior to this day but that this was the first time she had ever
seen him rub his chest."
The deceased's son, Constantine Lambroglou, gave evidence that on the night before the infarction he had a conversation with the deceased who had said that he "was angry [that] once again he had been asked to change employment locations [i.e. from "Little Collins Street to Kingsway in South Melbourne"]. . . that he was upset, that he felt that he was being victimised by his employers . . . in general he was very unhappy." Mrs. Maria Kefalianos, who was the daughter of Mrs. Lambroglou, gave evidence that shortly after the infarction on 1 July 1986 the deceased had told her "that he was very worried and distressed about learning about the transfer [to the Kingsway building]". That evidence was supported by Mr. Kalemkeridis who said that on the day before the infarction the deceased "was very upset and he felt like crying".
The question of whether the deceased suffered "emotional stress of work location" arose against a background that the deceased had objected to previous attempts to change his work location. Mrs. Kefalianos gave evidence of the deceased's attitude to previous suggestions of a change in work location; she said that on one occasion "... he was asked to be transferred and he did not want to go ... he made an appointment to speak to his superiors . .. he and I went
together . . . and consequently he was not transferred". As to
the change in his work location on the day before his infarction, it may be added that the deceased was given no notice whatever by Telecom of the proposed change (i.e. he was
not told until after he arrived at his normal work location) and he was not given any reason for the change; he was simply told by Mr. Kalemkeridis, who had come to the Collins Street work location, that he and the deceased were to change work locations. The deceased made it clear to Mr. Kalemkeridis that he did not want to change his work location and asked why he had to change, but Mr. Kalemkeridis was unable to give him any reason for the change.
As to sub-paragraph A(ii) in ground (i) above, in my view the ground of appeal is based on a misunderstanding of the finding of the Tribunal, (which appears at p. 222 of the appeal book) referring to "the emotional stress of change of work location and driving himself ...". In my opinion the words "emotional stress", considered in their context, referred only to the words "change of work location" and did not refer to the words "driving himself". In my opinion the finding of the Tribunal was that his coronary artery disease was aggravated by a number of factors including (a) "walking, climbing, lifting" (see earlier), (b) "the emotional stress of change of work location" (see preceding paragraph of these reasons) and (c) the fact of "driving himself from the workplace in Kings Way South Melbourne to Richmond to attend his Doctor when in the presence of chest pain . . . ". In my
-.
opinion ground (i)A(ii) can not be upheld.
As to sub-paragraph B(ii) in ground (i) above, in my
opinion it was open to the Tribunal to infer that the activity
Melbourne to Richmond to attend his Doctor . . . aggravated the "of driving himself from the workplace in Kings Way South Deceased's coronary artery disease precipitating acute myocardial infarction ..." The drawing of such an inference was open on the evidence as a whole and in particular the evidence (a) in Dr. Mendis' report that on 1 July 1986 "he came here complaining of pain across the front of his chest", (b) that Dr. Mendis sent him "by ambulance to the Alfred Hospital" (i.e. she did not tell Mr. Lambroglou to drive himself there), (c) of Dr. Dortimer, a specialist cardiologist, as to heart disease in general and specifically as to the deceased that "he was teetering on the brink of either falling into a major irreversible infarct or potentially being able to be saved from that if one had the means to save it" (cited by the Tribunal at p. 219 of the appeal book), (d) that the deceased had chest pain at the workplace and (e) that the deceased "felt very uneasy about that and he went back into the tea room to see if anyone was there ... he looked up and down. He did not see any body" and that also he went to "reception" but "there was nobody there". He also "tried to call his supervisor . . . but he did not get through to anybody and he felt because there was no-one there he just went to his car and drove to the family doctor".
In ground of appeal (i) paragraph C (set out above), it was contended that there was no evidence upon which the Tribunal could find or infer that the deceased's act in driving "contributed to the occurrence of the infarct or its
extent". In my opinion that contention by Telecom cannot be upheld. The evidence, including the evidence referred to as items (a), (b), (c), (d) and (e) in the preceding paragraph of these reasons, was, in my opinion, a proper basis, in law, for the Tribunal to make its finding that "driving himself from the workplace in Kings Way South Melbourne to Richmond to attend his Doctor when in the presence of chest pain" was one of the several matters "precipitating an acute myocardial infarction".
As to ground (i) paragraph E (set out above), the Tribunal's decision placed particular emphasis upon the events at work on 30 June and 1 July 1986. On the other hand the Tribunal did say that it was "satisfied that the deceased suffered aggravation of coronary artery disease and the employment was a contributing factor to that aggravation particularly employment on 30th June and 1st July 1986". Although that passage refers particularly to 30 June and 1 July 1986, in its terms it refers to the "employment" as being "a contributing factor to that aggravation". In addition, the Tribunal referred at some length to the evidence of Maria Giannis, the sister-in-law of the deceased, as to the deceased's complaints of pain to her on visiting her immediately after work during a period of 3 or 4 months before 1 July 1986. The Tribunal said that she had given evidence:
"that she saw the deceased on a regular basis. The deceased visited her home each day after work to wait for his wife where she would then be collected and taken home and that he had adopted this practice for many years. Mrs. Giannis said that for a period of about 3 or 4 months leading up to the day of the attack the deceased had complained to her of left arm pain ... She said that she had seen him on three occasions in the previous week [before the infarction], and on each occasion he had been seen rubbing his arm".
Having regard to what I have said in these reasons as to the other grounds of appeal I do not find it necessary to express a concluded opinion on this part of the amended grounds of appeal.
Ground (ii) of the appeal was in the following terms: "(ii) The tribunal failed to consider the opinions
of Doctors Rosenbaum, Sloman, Fuller and Dortimer on the question of causation of the Deceased's infarct."
I have referred earlier to one passage where the Tribunal cited the evidence of Dr. Dortimer. The Tribunal said:
"Dr. Dortimer disagreed with the view put by the Respondent that exercise in the presence of a thrombus within the artery is helpful to the extent that the artery is kept open and by it being open the thrombus is unlikely to rest or block that artery thereby precipitating infarction.
Dr. Rosenbaum held the opinion that if there was a temporal relationship between the onset of symptoms of myocardial infarction and physical activity, that a basis then exists for the proposition that activity precipitated the infarction.
It was his view further that, had the patient rested for a period of days or weeks prior to the day of the infarction, that that infarction would have been substantially delayed, or, if it had occurred, it would have been smaller.
In his view the deceased, by continuing to work after the onset of symptoms and immediately before the infarct, increased the oxygen demands upon the heart and, where the supply of blood to the heart via the arteries is diminished by the presence of coronary artery disease, the deficiency in turn therefore to the obstructed coronary arteries will be increased and extending the area of ischaemia."
The Tribunal expressly referred to the evidence of each of the three doctors who . sve oral evidence and also referred to the medical report of Dr. John Fuller. Having examined the transcript of their evidence and that report, in my opinion ground (ii) of the appeal cannot succeed. The Tribunal's decision made it clear that it did consider the opinions of each of them.
Quite plainly it rejected the evidence of Dr. Sloman, who was called as a witness by Telecom, and it was entitled to do so. The Tribunal said that Dr. Sloman had given evidence that if he were consulted by the deceased on the night of 30 June 1986, with the symptoms described, he "would not [have] advised discontinuation of nonnal activities. He said that he does not ever recommend that people rest . . . He discounted the view that activity, by it increasing the heart rate during a prodromal phase, can accelerate the occurrence of the infarction".
.
It was a matter for the Tribunal to decide whether it accepted the evidence of one witness rather than that of another witness and to decide what parts of the evidence of one witness should be accepted in preference to parts of the evidence given by one or more other witnesses. As Dixon J. in
Hocking v (1945) 71 CLR 430 at 490, said:
to decide as the reliance to be placed upon the so clearly within the exclusive province of the jury "There is no question in a trial that is regarded as evidence of a witness whom they have seen and heard. The fact must therefore be faced, that however little faith we as judges may have in all this, yet before the defendant can be entitled as a matter of law to a verdict he must so utterly destroy the plaintiff's narrative as to place it outside the competence of a jury to give any credence to the material parts of it, a thing which in my experience I have never seen done with reference to direct oral testimony given upon a civil issue."
That passage was cited in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 by Menzies J. who, speaking of the evidence of a specialist medical practitioner, stated (at 301) that the question was "whether there was any evidence to support the finding" of the jury, and said (at
"There may be cases where a witness admits the falsity of his evidence so that what he has said must be altogether disregarded, but in this case Dr. Haines maintained his opinion and the cross- examination did no more than emphasize that Dr. Haines' experience of leukaemia was limited, that his opinion as to its cause was not supported by scientific or statistical investigation, that his opinion was not accepted by other members of the profession and that the way in which he supported it involved some reasoning in a circle. This was, of course, all put to the jury, but seemingly, and surprisingly, they nevertheless accepted the evidence."
In the same case Windeyer J. (with whom Kitto J. agreed) said
(at 308):-"What was said is that there was no evidence at all on which the jury could reach its finding ... We are not to weigh the evidence as a whole. That was the jury's task. We are asked to say that Doctor Haines' testimony was obviously worthless. The case of
Hocking v &lJ is in point. 'l
Ground (iii) of the amended grounds of appeal was in the
following terms:
"No evidence was adduced before the Tribunal on which the Tribunal could find or from which the Tribunal could infer that the Respondent was dependent upon the Deceased at the time of the Deceased's death. The Tribunal was not able to award to the Respondent compensation unless it was able to make the finding that the Respondent was so dependent."
The Tribunal found that:
"it was agreed between the deceased and [Mrs.
Lambroglou] that she would retire from the work force
towards the end of 1986, that is four or five months
after the date of death of the deceased. There had
been discussions between [Mrs. Lambroglou] and the
deceased on this issue and there had also been
encouragement by the deceased and the adult children
of the marriage that [Mrs. Lambroglou] should in fact
retire from work and it was [Mrs. Lambroglours]
intention to do so".The Tribunal referred to Aafies v Kearnev (1976) 8 ALR
455 at 456 where Barwick CJ. said:-
"But, for my part, the question of dependence or no dependence, whole or partial, is a question of fact. It has been said to be so in many authorities by distinguished members of the House of Lords. It cannot be turned into a question of law by the citation of authorities."
Mrs. Lambroglou gave evidence that her husband (the deceased) wanted her to stop working, as did her family and that she intended to stop work "at Christmas time" in 1986.
It may be added that, in answer to a question as to why
she "had been working for the last few years after 1982 or 3 " ,
she replied:-
"Because my daughter was married. The finances were not enough. I wanted to fix my house, the kitchen, which was old. To help my husband to buy a car
because it was an old one. "
In my opinion it was open to the Tribunal, on the evidentiary material before it, to decide that Mrs. Lambroglou was dependent upon the deceased at the time of his death in August 1986, notwithstanding that she was employed at that time and that her earnings were approximately the same as his. Ground (iii) of the amended grounds of appeal can not be upheld.
It is not necessary to deal with grounds (iv) and (v) of the amended grounds of appeal in these reasons. Shortly before the end of the third day of the hearing of the appeal, Mr. Lenczner on behalf of Telecom suggested that it might be better if the court were to resolve
"the two issues, the primary issue of liability and
... the issues of dependency leaving aside the
figures aspect of the matter ... only deal with what we might call the first and second issue . . . give a decision on those matters and adjourn the further consideration of the matter to enable the parties to consider the court's reasons on those matters . . . if .[Mrs. Lambroglou] succeeded [the parties might] reach agreement upon what figure flowed".
. Larkin, of counsel, for Mrs. Lambroglou, told the court that the suggestion seemed to be "good common sense". The suggestion was discussed in a context of possible saving to
the parties of the costs of a further hearing. The court considers that counsel for both parties are to be commended for their attempt to reduce the costs of the proceedings. The further hearing of this appeal will be adjourned to a date to be fixed, to enable the parties to consider these reasons. The court is conscious of the length of the hearings before the Tribunal and before the court, (including the hearing before Ryan J. on 17 May 1990) and the resultant costs already incurred. It is highly desirable that
the parties reach agreement as to an appropriate figure and
thus avoid the cost of any further hearing in this court.I certify that this and the fifteen preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 7 May, 1991.
Associate: &-M c - -
Date: 7 May, 1991
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Dates of Hearing
Date of Judgment 7 May, 1991 Solicitors for Applicant Australian Government
SolicitorCounsel for Applicant Solicitors for Respondent Winter & Higgs Counsel for Respondent Mr. A. Larkin
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