Broken Hill Proprietary Co Ltd v Finestone, Andrew Lionel
[1997] FCA 1240
•31 OCTOBER 1997
CATCHWORDS
ADMINISTRATIVE LAW - procedural fairness - whether denial of an opportunity to the parties to adduce evidence on an issue not argued at the hearing but crucial in the Tribunal’s determination constitutes an error of law
COMPENSATION - distinction between ‘injury’ and ‘disease’ - Tribunal finding that cerebral infarct was an injury despite no argument on that issue during the hearing - Tribunal finding that cerebral infarct was not caused in manner alleged by the worker despite no argument on other possible causes - whether these findings constitute errors of law - whether parties should have been afforded an opportunity to adduce evidence after the hearing finished
Seafarers Rehabilitation and Compensation Act 1992(Cth) s 3, 9
Administrative Appeals Tribunal Act 1975 (Cth) s 39
Autodesk v Dyason No. 2 [1992/3] 176 CLR 300, followed
Sullivan v Department of Transport [1978] 20 ALR 323, followed
Zickar v MGH Plastic Industries Pty Ltd [1996] 140 ALR 156, cited
BROKEN HILL PTY COMPANY LTD -v- ANDREW LIONEL FINESTONE
No. NG 436 of 1997
EINFELD J
SYDNEY
31 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 436 of 1997
GENERAL DIVISION )
Between:BROKEN HILL PTY COMPANY LTD
Applicant
And:ANDREW LIONEL FINESTONE
Respondent
MINUTE OF ORDERS
The Court orders that:
the decision of the Tribunal be set aside
the matter be remitted to the Tribunal to be re-heard in accordance with these reasons for judgment
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
SYDNEY
31 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 436 of 1997
GENERAL DIVISION )
Between:BROKEN HILL PTY COMPANY LTD
Applicant
And:ANDREW LIONEL FINESTONE
Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 31 OCTOBER 1997
Introduction
Broken Hill Proprietary Company Limited (BHP) appeals from a decision of the Administrative Appeals Tribunal, given on 13 May 1997, that Andrew Lionel Finestone (the worker) suffered an injury in Hong Kong at about 11.30pm on 8 June 1994 entitling him to compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Act). The primary decision appealed to the Tribunal had been made on 2 November 1994 and confirmed on 17 March 1995 in favour of BHP. The question of law asserted in this appeal was that the Tribunal failed to afford BHP procedural fairness.
Facts
The case is unusual. The worker was employed by BHP at Whyalla on 4 May 1994 as an Integrated Rating on the “Iron Baron” which at the time of his injury was in Hong Kong on a floating dry dock. His case at the Tribunal was that on returning to his boat from a function, he stepped from a shore launch onto the dock floor, lost his balance and fell, hitting his head. He went or was assisted to his cabin and the following morning while still in bed had a stroke. He was taken to hospital where he stayed for several weeks before being sent back to Australia for a further six weeks hospitalisation. He now claims some permanent loss of the use of various parts of his body which he says has rendered him significantly disabled for employment. There seems to have been no issue that the worker had a fall on the occasion in question but whether he hit his head when he fell, what happened to him the following morning, and the extent of his disability were all disputed.
Hearing in the Tribunal
The worker presented a statement of issues to the Tribunal as follows:
1.The only issue apparent on the evidence currently available is whether or not the applicant struck his head when he fell on 8 June, 1994.
2.The only specialist medical evidence available (Dr Cull) is to the effect that if the applicant did strike his head it is more likely than not that he sustained a contracoup (sic) injury to the frontal lobe of the brain which caused his stroke.
These issues were hardly felicitously phrased for easy answer but their general intent is tolerably clear. They were certainly two of the issues contested by the parties at the hearing and ruled on by the Tribunal. But it seems that there was also a dispute as to whether the worker’s fall and subsequent injury arose out of or in the course of his employment. On this issue the Tribunal held:
The Applicant incurred his injury during a social outing organised by the Chief Steward of the Iron Baron for the officers and crew and their partners. While it was not a function officially sponsored by the Applicant’s employer in the sense that the Respondent financed the outing, nonetheless the Tribunal finds that the dinner trip on Hong Kong Harbour constituted a function for the crew of the Iron Baron at a time when they were away from their home base. It was a function which was attended by most of the officers and crew of the ship, including the Captain. In this sense, it was a function which was impliedly authorised by the employer.
There is no appeal from this finding. Evidence was also led to establish that the worker had been drinking significantly during the evening but BHP conceded and the Tribunal held that “there was no basis for a finding that the fall had occurred as a result of any gross misconduct on the part of the [worker]”.
The Tribunal’s findings
On the central issue the Tribunal found:
“.... whether the [worker] fell first on his buttocks, his back or his left arm or whether he fell forwards or backwards, there is no evidence that he sustained a severe blow to the head ..... if he hit his head, it was indeed a minor incident ..... Any injury to his head could not be classified as a severe head injury.”
In the light of these findings on the first question for determination, the second question did not receive a direct answer.
The medical diagnosis of what actually happened to the worker on 9 June 1994 differed significantly between the doctors. One view was that he suffered a contrecoup injury to the frontal lobe of his brain, presumably from the fall. A second view was that he suffered a transient ischaemic attack. A third view, accepted by the Tribunal, was that he had suffered a cerebral infarction in the right frontal lobe. Although there was no evidence of an embolus, the stroke might nevertheless have been embolically caused. The Tribunal found that the infarction was an injury which damaged brain tissue on the right side of the brain.
The Tribunal held that there was insufficient evidence to establish on the balance of probabilities a causal link between the fall and the infarction. It found to be probable “that there were other as yet unidentified causes for the [workers’] condition” and that “the probable cause of the condition is left open by the evidence ...”.
The Tribunal then took the view that it should consider whether the infarction was itself an injury which arose out of or in the course of the worker’s employment despite the fact that this matter was not in the statement of issues. As the injury occurred while he was on board the ship on which he was employed, the Tribunal was satisfied that it was “a work-related injury”, that he had thereafter suffered an incapacity for work until 5 August 1994, and that his incapacity thereafter and the extent of any permanent impairment required further investigation and assessment.
The legislation
‘Injury’ is relevantly defined in section 3:
(a)a disease; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course, of the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
.....
‘Disease’ is defined as:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment.
‘Ailment’ is defined as:
any physical or mental ailment; disorder, defect or morbid condition (whether of sudden onset or gradual development)
Section 9 relevantly provides:
(1)This section does not limit the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment.
(2)An injury is also to be treated as having so arisen, for the purposes of this Act, if it happened:
...
(b)if the employee is a seafarer:
(i)while the employee was on board the prescribed ship on which he or she was employed or engaged; or
(ii)while the employee was temporarily absent from that ship during an ordinary recess in that employment and not at his or her place of residence; or
...
Compensation is payable pursuant to section 26 if an employee suffers an injury that results in, amongst other things, incapacity for work. Reasonable medical treatment for the injury is compensable by section 28.
This appeal
The Tribunal’s task was to review the internal determinations by BHP. It commenced its hearing on 21 December 1995 and then adjourned to 13 May 1996. The hearing finished four days later on 16 May 1996 and the decision was given on 13 May 1997. BHP complains that in this twelve month period, the Tribunal did not provide it with an opportunity to adduce medical evidence or make submissions on whether the worker’s cerebral infarct of no known cause was, for the purposes of the Act, an injury arising out of or in the course of his employment by BHP. It was also contended that the Tribunal failed to allow an opportunity to offer evidence or submissions on the cause of the infarct. BHP submitted that the Tribunal also failed to consider whether the proceedings should be adjourned to enable the parties to obtain further medical evidence as to the probable cause of the infarct and to permit argument for such an adjournment.
BHP argued that a cerebral infarction is not an injury but a disease which is only compensable under the Act if it is materially contributed to by the employment which the Tribunal held was not the case here. This issue was not debated before the Tribunal. There was, as it happens, some chance evidence of one of the doctors in support of this contention, but as the Tribunal did not even mention this evidence when it made its finding that the infarct was an injury and not a disease, it can hardly be thought to have made much of an impact. This fact, BHP said, is either a criticism of the Tribunal’s failure to give attention to this evidence or a reflection of the fact that the issue was not argued or arguable having regard to the battleground on which the case was litigated. BHP pointed to a number of possible causes of the infarct raised by the evidence including the worker’s use of heroin, his significant problem with alcohol, and heavy smoking, so that if it was a disease, there was ample support, BHP said, for the Tribunal’s inability to find a nexus with the employment.
The evidence
The worker argued that the question whether he suffered his infarction spontaneously, in the sense of being unrelated to any head injury the night before, was squarely raised in the medical evidence and could have been and was addressed during the hearing. The only evidence of the matter I have been able to find was when Dr Nelson Wong was cross examined by counsel for the worker over eight pages of transcript about whether the infarction was caused by a head injury. This situation is quite ironic because the intent of this cross examination was to try to get Dr Wong to reverse his view that there was no significant head injury in the fall and that there was no causal link between the infarction and any such injury. The attempt was unsuccessful as Dr Wong adhered steadfastly to his opinions on these matters. This evidence is now relied on by the worker for the entirely different purpose of supporting the Tribunal’s finding that the infarct was a discrete injury compensable because it occurred spontaneously while he was on board ship.
Error of law
This anomaly does not, however, establish an error of law by the Tribunal. It is true that the case was primarily contested on whether the worker sustained a head injury when he fell and whether his subsequent stroke resulted from this injury. It was certainly not fought on whether the infarct was caused by something else. This is the reason why the Tribunal, having rejected the head injury thesis, could not source the infarction elsewhere. The doctors were simply not asked to try to do so and there was therefore no or little evidence on which the Tribunal could have made a definitive finding in this respect.
But no complaint can be made on this ground about the course taken by the Tribunal of examining whether the infarct was a discrete injury or disease entitling the worker to compensation in any event. The evidence and the Act clearly raised this as an available finding. If BHP did not investigate or pursue the possibility at the hearing, that was its choice at the time. It was represented by counsel who would undoubtedly have made his own forensic decisions.
The problem with the Tribunal’s determination was, in my opinion, its finding that the infarction was an injury and not a disease. Except for the passing observation of Dr Wong in his statement of 19 December 1995 that the infarction was a disease, not a physical or mental injury, which was not the subject of any of his oral evidence and was not mentioned by the Tribunal in its decision, this subject was not litigated at all.
The importance of this matter is made clear by the majority decision of the High Court in Zickar v MGH Plastic Industries Pty Ltd [1996] 140 ALR 156. This case concerned the definitions of ‘injury’ and ‘disease’ in the New South Wales Workers Compensation Act 1987, which, although different to those in the legislation under consideration here, have something to offer to this case in terms of the distinction between them. Kirby J stated at 187:
The approach to the definition of “injury” which I favour does not necessarily mean that every catastrophe connected with a progressive disease will fall within the definition of “personal injury”, primarily so defined. Whether, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a “personal injury” can be left to determination on a case by case basis.
Yet the matter was not raised during evidence or argument at the Tribunal’s hearing despite the importance of the statutory distinction.
Tribunal’s obligations
Section 39 of the Administrative Appeals Tribunal Act 1975 (Cth) states:
Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
In Sullivan v Department of Transport [1978] 20 ALR 323 Deane J said at 342:
In dealing with an application for review, the Tribunal is plainly under a duty to act judicially, that is to say, with judicial fairness and detachment ... Where a Tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his case is at the heart of the requirements of natural justice which it is obliged to observe.
Again in Autodesk v Dyason No. 2 [1992/3] 176 CLR 300, Brennan J said:
This Court has undoubted jurisdiction to recall a judgment which it has pronounced, at least prior to the formal entry of the judgment, if the judgment has been pronounced against a person who without fault on the part of that person, has not had an opportunity to be heard as to why that judgment should not be pronounced.
Deane J (dissenting) said:
... there has been an inadvertent denial of procedural fairness by the Court for the reason that ... the respondents have never been given a clear and adequate opportunity to place before this Court full submissions about the correctness of the proposition which constituted the basis of the Court’s ultimate decision against them.
Conclusion
In my opinion the Tribunal denied procedural fairness to BHP by not offering it a reasonable opportunity to address the possibility, either during or after the hearing, that the worker might be compensable for the effects of an injury as opposed to a disease -- within the meaning of the Act -- by way of a cerebral infarction. If it was a disease of unknown aetiology the worker must fail because he could not link it to the employment. If it was an injury, as distinct from a disease, it qualified him for the benefits of the Act by reason of the mere fact that he was on board his ship at the time. BHP was given no notice that the worker was advancing such a case as an alternative to the head injury scenario, and as far as I can see, the worker did not advance any such case. The Tribunal took the initiative in this regard but did not notify BHP that it was contemplating doing so. BHP therefore had no opportunity to meet the case or even to make submissions that it should be permitted the chance to do so.
The appeal must therefore be upheld, and the decision of the Tribunal set aside. Despite the passage of an inordinate time since the incident in question, the matter must by law be remitted to the Tribunal for a rehearing of this question. I will hear the parties on costs.
For the applicant Mr J.A. Hislop QC and Mr J. Wallace instructed by Sparke Helmore Solicitors For the respondent Mr M.F. Holmes QC and Mr A. Hughes instructed by W.G. McNally & Co Solicitors Date of Hearing 14 August 1997 Date of Judgment 31 October 1997
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