Casarotto, A v Australian Postal Commission
[1989] FCA 157
•14 APRIL 1989
Re: ANTONIO CASAROTTO
And: AUSTRALIAN POSTAL COMMISSION
No. G1046 of 1988
FED No. 157
Administrative Law
10 AAR 191
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)
CATCHWORDS
Administrative Law - application for judicial review of decision of Administrative Appeals Tribunal rejecting in part a claim for compensation under s.29 Compensation (Australian Government Employees) Act 1971 (Cth) - distinction between "aggravation" and "acceleration" within the meaning of s.29(1) - whether decision maker must consider acceleration independently of aggravation - whether period of compensable incapacity following an acceleration of a pre-existing degenerative disease could be finite in some cases and open-ended in others - whether tribunal's finding as to termination of compensable period lacked a proper foundation in the absence of evidence - onus of proof regarding date of termination of compensable period.
Compensation (Australian Government Employees) Act 1971 (Cth), ss.27 and 29
Administrative Appeals Tribunal Act 1975 (Cth), ss.43(1) and (2), 44(1)
HEARING
SYDNEY
#DATE 14:4:1989
Counsel and Solicitors Mr. L. Grey instructed by
for Applicant: Messrs. Paul A. Curtis & Co.
Counsel and Solicitors Mr. M. Slattery instructed by
for Respondent: Australian Government Solicitor
ORDER
That the appeal be dismissed.
That the applicant pay the respondent's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant appeals against a decision of the Administrative Appeals Tribunal constituted by Mr. McMahon (Senior Member) given on 2 June 1988.
The applicant has been employed since 1976 as a postman, originally as a relief postman and later with his own beat at Bondi Beach. The job which entailed as well sorting the mail as delivering it involved dragging and lifting heavy mail bags and much stretching and bending. In August 1977, while lifting a bag to empty the contents into a bin, he suffered acute pain in his back and was absent for one week from work. He has had a back problem ever since and it is not disputed that he has a degenerative spondylitic disease of the lumber spine.
The applicant had time off from work intermittently as a result of the pain in his back. In March 1986 he slipped on some wet grass during the course of his beat and reported severe pain in his lower back and was as a result absent from work for two days. The pain continued after his return to work until May 1986 at which time he was rostered for other duties consisting mainly of sorting mail into private boxes. After four days he found that he could not continue and indeed was unable to walk and shortly after went off work and has not returned since. He was at the time of the hearing in the Administrative Appeals Tribunal unemployed and had received no offer of alternative employment.
The applicant claimed compensation under the Compensation (Australian Government Employees) Act 1971. Although this Act has now been repealed there is no dispute but that it governs the entitlement, if any, of the applicant to compensation. In his claim for compensation, the applicant described the nature of the injury or disease as being: "aggravation to previous injury to lower back through lifting, bending and carrying mail bags" indicating that it occurred during the course of his normal duties. The application was brought under s.29 of that Act which provides relevantly:
"(1) Where -
(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If -
(a) ...
(e) the total or partial incapacity for work of the employee,
results from the disease or from the aggravation, acceleration or recurrence of the disease ... then, for the purposes of this Act, unless the contrary intention appears -
(f) the contraction of the disease or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and ..."
The consequence of the deeming provision in s.29(2)(f) is to result in a liability in the Commonwealth to pay compensation under s.27(1) of the Act which provides as follows:
"(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act."
The relationship between ss.29 and 27 of the Act is dealt with in the judgment of the Full Court of this Court in Miles v. Northern Territory Fire Services 15 March 1989 (unreported). The applicant's claim was disallowed by the Commissioner for Employees Compensation and as a result the applicant sought review of that determination by the Administrative Appeals Tribunal.
To the application for review was annexed, by way of reasons for the application, a document which stated as follows:
"Between the 3 March 1976 and April 1986 the Applicant suffered an injury to his back and an anxiety state in the course of his employment, when he was required to lift, bend and carry mail bags, strapped over his shoulder. The Applicant was required to perform this work when the Australian Postal Commission knew or ought to have known would accelerate, exacerbate or make chronic the injuries previously suffered. As a result the Applicant has been unable to work for various periods by reason of his injuries and disabilities and has been unable to perform his duties since May 1986. The Applicant is now suffering from a continuing back disability. It will be contended that the Applicant has remained unfit for his pre-injury duties and that the Australian Postal Commission has refused to provide suitable alternative employment and that the Applicant is entitled to Compensation on and from May 1986."
The Tribunal was of the view that while the back condition itself was a degenerative condition and was not work induced, the applicant was entitled to be paid compensation for total incapacity from the date on which he last worked, namely, 12 May 1986 until 21 July 1986 but not thereafter. It is against this decision that the applicant appeals.
An appeal to this Court under s.44(1) of the Administrative Appeals Tribunal Act 1975 lies only on a question of law. It is not disputed in the present case that there was a question of law involved or that the appeal was competent. It should perhaps here be noted, however, that merely because the Tribunal has erred in law, will not necessarily result in its decision being set aside, at least in a case where the error would not have affected the conclusion in fact reached: Bisley Investment Corporation v. Australian Broadcasting Tribunal (1982) 59 FLR 132 at p 146 per Lockhart J. and p 161-2 per Morling J.
The applicant's grounds of appeal indicated two questions of law on which it was said the Tribunal erred. First it was said that the Tribunal did not give proper consideration to the applicant's claim that his employment caused an acceleration, as that word is used in s.29 of the Act, of the applicant's pre-existing degenerative condition. Second it was said that on the material before it the Tribunal could not reasonably have come to the conclusion that the applicant's right to compensation ceased on 21 July 1986.
As to the first ground it was submitted that the Tribunal had simply not dealt with a submission made to it that the applicant's work with the respondent accelerated the progress of his underlying spondylosis. It was said that the failure to deal with this matter may have arisen either because it regarded the scope of its consideration as limited by the words of the applicant's original claim, or because it regarded the evidence as not sufficiently supportive of the claim, or because it simply overlooked the issue through inadvertence. In any of these cases it was said there was clearly a reviewable error of law.
It was not disputed that the Tribunal was not limited in its review to a consideration of the original claim as submitted by the applicant, confined as it was to a claim for aggravation, but that under s.20 of the Compensation (Australian Government Employees) Act 1971 the Commissioner for Employees Compensation was under a duty "to determine all matters and questions arising under this Act" and thus was under a duty to consider whether an employee claiming compensation should be compensated for the acceleration of the disease. The Tribunal, under s.43(1) of the Administrative Appeals Tribunal Act 1975, for the purposes of the review may exercise all the powers and discretions conferred upon the Commissioner and thus stands in the shoes of the Commissioner in coming to its decision. While it is true, as Brennan J. said in re Brian Lawlor Automotive Pty. Ltd. and Collector of Customs (NSW) (1978) 1 ALD 167 that the Tribunal is not a primary administrator, so that it could not embark upon any matter that was not properly before the original decision maker whose decision is being reviewed, (cf. re Tradigrain Australia Pty. Ltd. and Export Development Grants Board (No. 1) (1984) 6 ALD 442), once a matter properly before the original decision maker comes to the Tribunal for review the whole matter before the decision maker is open to review and an applicant for review will not be confined by the submissions put to the original decision maker but the tribunal must decide for itself whether the decision made by the administrator (in this case the disallowance altogether of the claim) was the right decision which ought to have been made in the circumstances: Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at p 429-30.
Section 43(2) of the Administrative Appeals Tribunal Act 1975 provides, subject as set out in the section, that the Tribunal shall give reasons either orally or in writing for its decision. Those reasons are directed by s.43(2B) to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Not every failure on the part of the Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s.43(2). However, it clearly would constitute an error of law if it can be demonstrated that the contention in question, being material, was not considered in deciding the matter before the Tribunal. Thus in Dennis Willcox Pty Ltd v. Federal Commissioner of Taxation (1988) 79 ALR 267 it was held that a failure by the Tribunal to consider a submission made to it, that in ascertaining whether the appellant had gained a "profit" on the sale of certain shares there should be deducted from the proceeds of sale not only the price paid for the shares but also the amount by which the value of the shares at the time the appellant purchased them exceeded that price, brought about a miscarriage of justice. In dealing with this matter Jenkinson J. with whom Woodward and Foster JJ. agreed said at p 276:
"Therefore, if the applicant's submission, or a modification of that submission, were held by this court to be correct in point of law, the failure of the tribunal to mention either the submission or the questions of fact about value to which I have referred would leave this court and the parties unable to determine whether, on the one hand, error of law had vitiated the tribunal's consideration of the submission or, on the other hand, the submission had availed the applicant nothing because the factual basis on which it rested had not found acceptance by the tribunal. There is also the further possibility that the tribunal's failure to mention either the submission or the questions of fact which is raises was the result of a failure, by inadvertence, to consider the submission when the tribunal was engaged in deciding the reference. Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s.43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the tribunal. It ought, therefore, to be inferred that the submission was inadvertently overlooked by the tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing (cf. Sullivan v. Department of Transport (1978) 20 ALR 323 at 353). In either event there has been, in my opinion, an error of law by the tribunal, ... The failure of the tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision or the failure to carry out the duty imposed by s.43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the tribunal's decision was vitiated by error of law: see Pettitt v. Dunkley (1971) 1 NSWLR 376."
Accordingly, I must consider whether there has in fact been a failure by the Tribunal to mention the submission or consider it and whether the submission was worthy of serious consideration. It may be conceded that the submission was seriously advanced to the Tribunal, although to be fair to the Tribunal, counsel for the applicant was also want to refer to aggravation alone as presumably comprising both aggravation and acceleration.
Mr. McMahon's reasons for decision were criticised in that while initially the learned Member referred both to aggravation and acceleration, it is said that later in the reasons (see e.g. paras 21, 22, 26, 27, 28, 29, 30, 31, 32) Mr. McMahon spoke only of aggravation. By way of illustration in paragraph 19 of his reasons, Mr. McMahon said:
"Neither the applicant nor any of the doctors claimed that either of these conditions was work related. It is apparent on the medical evidence that his lumbar spondylosis would have occurred and developed in any event. The necessary relationship with the applicant's work to make his incapacity compensable must depend upon demonstration of an aggravation or acceleration to which his employment contributed. Only when that is established, will it become necessary to determine whether any incapacity so caused and continuing is a partial or total incapacity for which compensation would be payable under ss 45 or 46 of the Act."
Acceleration is referred to by Mr. McMahon in paragraphs 20 and 23 although the word appears in paragraphs 24 and 25 in quotations from cases referred to in those paragraphs.
Again, by way of further example, in clause 23 Mr. McMahon says:
"The difficult question to decide is the compensable period, when an aggravation or acceleration occurs in conjunction with a degenerative disease. Is the employment to be held a contributing factor to incapacity when the worker would in due course have become incapacitated in any event irrespective of any thing that happened in the course of his employment?"
It is obvious from these references that Mr. McMahon was aware of the fact that aggravation and acceleration were alternative possibilities comprehended by s.29. However, when he came to discuss the compensable period after the reference to acceleration in clause 23 he thereafter dealt with the issue by reference to the word "aggravation". Further, in dealing with the facts of the present case and the medical evidence he spoke only of aggravation and not of acceleration.
It is clear that the words "aggravation" and "acceleration" represent two different ideas having different shades of meaning although it is equally true that there is some overlap between the two in the context in which they appear in s.29. In Federal Broom Company Pty. Ltd. v. Semlitch (1964) 110 CLR 626 Windeyer J. considered the meaning of the words in the context of the Workers' Compensation Act 1926-1960 (NSW) which refers to the "aggravation, acceleration, exacerbation or deterioration" of a disease. His Honour said at p 639-640:
"The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word "acceleration" probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli."
In Ogden Industries Pty. Ltd. v. Lucas (1967) 116 CLR 537 at p 593 Windeyer J., in considering the workers compensation legislation of Victoria which defined injury by reference, inter alia, to the "recurrence, aggravation or acceleration of any pre-existing injury or disease", said at p 593:
""Aggravation" means, I think, that an existing disease has been made worse, not that it has simply become worse. "Acceleration" I have previously said and venture to repeat "probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested but susceptible of being hastened by external stimuli": Federal Broom Co. Pty. Ltd. v. Semlitch. To this view I adhere."
In the Darling Island Stevedoring and Lighterage Co. Ltd. v. Hankinson (1967) 117 CLR 19, again in the context of the New South Wales legislation, Barwick C.J. said of the words "aggravation, acceleration, exacerbation or deterioration" at p 26:
"The words in this collocation may overlap in their denotation but none the less they connote different consequences of work in the employment upon pre-existing non-employment disease. In my opinion, the expression "acceleration of the disease" cannot be treated as connoting no more than the approximation of the incapacitating effect of the disease. In my opinion, the expression refers to the acceleration of the progress of the disease itself. No doubt in this sense it at least overlaps the significance of the expression "aggravation of the disease" but is none the less distinct from it. I can conceive that a disease may increase the tempo of its progression and thereby produce a result of a kind which a lesser progression may not have produced at all: or it may thereby produce a more extensive result, or it may produce sooner the same result as that which without the acceleration of its progression the disease might have produced; nor do these instances exhaust the possibilities."
Finally, in Johnston v. Commonwealth of Australia (1982) 56 ALJR 833 Gibbs C.J., Mason and Wilson JJ. at p 835 referred to what Windeyer J. had said in Ogden Industries and Federal Broom and said:
"There is some force in the comment of his Honour in Lucas that "aggravation" signifies "making worse" rather than "becoming worse", a comment reflected in the remarks of Brennan J. in the Federal Court in the present case. However, the comment has rather more force when applied to the transitive verb "aggravate" than when it is applied to the noun "aggravation", especially when it is used in a passive sense in the expression "suffers an aggravation". "Aggravation" may mean "An increasing ... in gravity or seriousness" as well as "being increased, in gravity or seriousness"."
These quotations illustrate what appears in any event from the ordinary English meaning of the words "aggravation and acceleration", namely that "aggravation" connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.
One may be excused for asking why, in a case where the Tribunal found one of the two factors, namely aggravation, it matters whether the Tribunal considered and found there to be present or absent acceleration. The answer, however, is said to be found in the ultimate period of incapacity. To understand the argument it is convenient to reproduce two diagrams which were much discussed in argument.
(DIAGRAM OMITTED)
The first diagram seeks to graph as a straight line the natural progression of the disease in relation to the level of total incapacity. The curved graph illustrates what is said to happen when there is an aggravation of a disease. It was said that in a case of aggravation there will always be a finite period of compensable incapacity commencing with the point at which the aggravation line on the graph meets the total incapacity line and concluding with the point of time at which the natural progression of the disease would have produced total incapacity. In the case of acceleration, however, it is said that the period of incapacity will always be open-ended and that there will be no intersection.
The first graph of aggravation is consistent with evidence led before the Tribunal. The reasons refer to this evidence in the following sentences in para. 19:
"Furthermore, it will be necessary to determine whether the effects of any such aggravation continue to incapacitate the applicant or whether his incapacity would have developed quite independently. Dr. Jones described the process of resolving this question by way of a mathematical analogy. He visualised a graph of 2 lines. One line would represent the natural progression of the disease. The other line would represent symptomatology caused by an aggravation. At one stage, in his view, the lines would intersect. Thereafter, the symptoms would cease to be work-related. They would relate exclusively to the first and continuing line."
It does not seem that the second graph, said to relate to acceleration, was discussed either in evidence or in submission before the Tribunal. Nevertheless the significance of the graphs is said to be that a finding of aggravation leads inexorably to a finding of a finite period whereas a finding of acceleration leads inevitably to a finding of an open period.
The submission put in this way could be accepted only if aggravation and acceleration were mutually exclusive. Yet it is clear from the passages I have quoted above that there is some considerable overlap between the two. Further, in the absence of authority I would find it hard to accept the submission that acceleration must invariably lead to an open-ended period of incapacity. Rather, it seems to me, that the question whether or not acceleration will lead to a fixed period or an open period will depend upon medical evidence related to the particular disease and will not arise as a matter of law. It is conceivable that in a case of one progressive disease an event could produce an acceleration in that disease and once there was that acceleration the disease would thereafter either continue in the same course of acceleration as per line 1 on the acceleration diagram or continue at a pace parallel to the pace of original progression but commencing from a higher level in the disease as per line 2 on the same diagram, or alternatively might stand still altogether until the period of natural progression caught up with the period of acceleration. This third and logical possibility is however not represented in the diagrams reproduced. The question then arises as to whether there is some principle of law which requires the conclusion that in the case of acceleration of a progressive disease the period of incapacity must be an open period.
There appear to be two competing statements of dicta which are said to lead to different results. In McLaughlin & Co. Pty. Ltd. v. Brinnand (1965 unreported) as quoted in Hankinson at pp 24-25 Windeyer J. said:
"If, however, the employment by aggravating his disease or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say, it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not accelerated or aggravated, would have produced it. It may be that these considerations are artificial in relation to fundamental ideas of medical science. Their application may present special difficulties in connection with diseases of uncertain aetiology. But it seems to me that the language of the Act forces them upon us."
It is interesting to note that Windeyer J. in this passage refers to aggravation and acceleration as both encompassing a finite period.
To somewhat the same effect is Romer L.J. in Old v. Furness Withy & Co. (1934) 27 BWCC 266 at p 281 where his Lordship said:
"where the only effect of the accident is to accelerate the disease so that man is put into a condition of incapacity at an earlier date than he would have been put had the disease been allowed to run its normal course without acceleration caused by the accident, his incapacity that is due to the accident may not last beyond the date at which, if the disease had run its normal course, he would have become incapacitated."
In Salisbury v. Australian Iron & Steel Ltd. (1943) 44 SR(NSW) 157 Jordan C.J. considered in detail the position of a worker suffering from a progressive non-employment disease which would in the ordinary course of events eventually incapacitate the employee at first partially and then totally. His Honour postulates that the worker incurs an employment injury and is incapacitated. His Honour says at p 161-2:
"Such a worker may incur an employment injury which incapacitates him for one or other of a number of different reasons.
1. It may cause an incapacity which is not associated with his non-employment disease, for example where a worker suffering from a not yet incapacitating non-employment heart disease cuts his hand while working and is unable to resume work only because the cut has not yet healed.
2. It may cause incapacity which is associated with the unemployment disease, as where it is not of itself incapacitating, but its effects, in combination with those of the not otherwise incapacitating disease, are incapacitating.
(a) In this type of case, the employment injury may be purely temporary in its effects. For a time it produces effects and then it ceases to produce any. So long as it produces effects, these, added to those of the disease cause incapacity which would not otherwise exist. But when it ceases to produce effects, the stage of the disease is found to be what it would have been, and its course to continue as it would have done, if the injury had never occurred. (b) Or it may be permanent in its effects. When these are added to the effects of the disease, they cause partial incapacity which did not previously exist and would not otherwise then have come into existence, or it prematurely increases the extent of a previously existing disease incapacity. The effects of the injury do not disappear. They continue, in combination with the effects of the disease, to contribute to the premature occurrence of disability which would not then have been produced by the disease alone and to the continuance of the incapacity so occurring. In the long run the disease alone would have caused the disability, but the injury anticipates it."
In the case which his Honour refers to as 2(a), his Honour was of the view that the right to compensation would cease when the stage was reached at which the employment injury ceased to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist. In the case his Honour refers to as 2(b) his Honour was of the view that so long as the effects of the employment injury which produces incapacity or increased incapacity which would not otherwise have existed, continue, the fact that a non-employment injury supervenes does not deprive the worker of his right to continue to receive compensation.
In considering Old v. Furness Withy & Co. Ltd. to which reference has been made above Jordan C.J. points out that in that case compensation was awarded for a fixed term because, it would seem, that the injury was such that its results would not always affect the claimant, it not permanently adding to his incapacity. Jordan C.J. then continued, referring to the passage quoted above from that decision:
"There are, however, certain observations by Romer L.J. (1934) 27 BWCC at 280-1 which have been taken to mean that even if the employment injury produces permanently incapacitating results, nevertheless when the disease reaches the stage at which it would have of itself caused incapacity independently of the employment injury he loses his right to compensation. If they do mean this, they are, in my opinion, only dicta, unnecessary for the decision of the case and inconsistent with the authorities. Indeed, they would seem to be somewhat inconsistent with the observations of the same learned judge in the later case of Ormond v. C.D. Holmes & Co. Ltd. (1937) 2 All ER 795 at p 801 where he said: "In some cases, however, incapacity is caused by a disease in conjunction with a contributory cause. A man, for instance, may be suffering from a disease of the heart that sooner or later is bound to cause his death. His death, however from the disease may be accelerated by some particular, though not necessarily an unusual, act of exertion. In those cases, the death or incapacity can properly be said to be caused by an accident, and, where the contributing cause is furnished by and in the course of the injured workman's employment, he is entitled to compensation under the Act.""
The judgment of Jordan C.J. in Salisbury was considered by Barwick C.J. in Darling Island Stevedoring in which the Chief Justice refers to Sir Frederick Jordan's judgment in Salisbury as being "illuminating". Referring to the case of an acceleration by work in an employment of a pre-existing disease his Honour at pp 26-7 says:
"If incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the case with any other injury? I have no doubt that it would. If the incapacity it causes ceases, the award will be for that reason terminable. But that incapacity does not cease because it is demonstrable that, without the injury, the worker will have arrived from another cause at the same state of incapacity. It seems to me nothing to the point that that other cause would have been the pre-existing disease in its own unaided progression. Where the incapacity which results from the acceleration is permanent, in my opinion, the award is not terminable because that incapacity would in any case have been the end result of the pre-existing disease."
His Honour then continues by supporting what Sir Frederick Jordan had said as to Old v. Furness Withy & Co. and by disagreeing with what was said by Windeyer J. in McLaughlin & Co. Pty. Ltd. v. Brinnand.
None of the other justices in Hankinson dealt with the issue although Taylor J. with whom Kitto J. agreed said at p 31:
"... if what happened on 3 September 1964 was no more than an aggravation of the respondent's disease, it was the aggravation of that disease which directly resulted in the respondent's incapacity on and after that date. In that case, again, it is beside the point to say that if the aggravation had not occurred total incapacity or death would at some later time have resulted from the natural progress of the disease."
When one reads the comments of Barwick C.J. together with those to which I have referred of Jordan C.J. it seems to me that the Chief Justice was not propounding as a principle of law a principle that in every case where work caused an acceleration of a disease there was necessarily a period of incapacity which continued notwithstanding that the course of the original disease would without the work have at some later time brought about the same incapacity, but rather his Honour was rejecting as a principle of law the statement made by Windeyer J. that the period must always be a finite period. With respect, that accords with common sense. As I have already indicated one can imagine cases of acceleration of a pre-existing progressive disease where the course of the disease itself is such that the consequences of the acceleration cease to matter after a time and contribute not at all to a greater incapacity than would have arisen as a result of the normal progression of the disease. In other circumstances the acceleration results immediately in total incapacity and the mere fact that at some stage total incapacity would have arisen is not a reason for discontinuing compensation.
It would be necessary in each case, be it one of aggravation or acceleration to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.
Returning to Mr. McMahon's reasons, it should be noted that Mr. McMahon was of the view that the aggravation to the back injury in 1977 could be "completely discounted" and that the applicant had "completely recovered". Mr. McMahon was also of the view that certain incidents in 1980 when the applicant's work practices were changed were "equally short-lived". That brought the Tribunal to the final incidents relied upon in March and May 1986. The reasons continue in para.32:
"I have no doubt that the applicant suffered increasing pain and still genuinely suffers from a relatively early onset of degenerative spondylosis. There is nothing, however, in his duties or in his various work related incidents that point to anything dramatic or traumatic which would account for such features of his spinal condition as disc bulging. The aggravations in themselves are fairly trivial, although one must make allowances for the paid they would cause to somebody already subject to the ravages of this degenerative disease."
It is certainly not clear whether Mr. McMahon in certain paragraphs of his reasons forgot any distinction between aggravation and acceleration or merely used the word aggravation as including acceleration. The latter would be not unsurprising having regard to the overlap that exists between the two concepts. However, it is not for this Court to guess what Mr. McMahon intended to convey in using the word "aggravation" and not referring to the word "acceleration". Thus, if I were of the view that the failure on the part of Mr. McMahon to consider acceleration were material, or to use the language of Jenkinson J. in Dennis Willcox were a submission "worthy of serious consideration" then I would allow the appeal and remit the matter to the Tribunal for further consideration. However, in the light of the findings in paragraphs 31 to 33 that in respect of each incident there was a speedy recovery and that the "incapacity resulting from the two incidents in March and May 1986 was not present when Dr. Ehrlich first examined the applicant on 23 December 1986 ..." it seems to me that whether or not Mr. McMahon characterised the relevant injury as one arising from aggravation of a pre-existing condition or acceleration (and it would seem in relation to a progressive disease that acceleration is the preferable categorization) the case was one where the effect of the aggravation, or acceleration as the case may be, had ceased. That being the case it is in my view consistent with what was said by Jordan C.J. in Salisbury, as cited with approval by Barwick C.J. in Darling Island Stevedoring, that the present is not a case where, there being an acceleration which brings about incapacity, the fact that the incapacity would have been achieved by the ordinary course of the pre-existing illness is irrelevant, but rather one where the incapacity caused by the incidents, including the incidents in 1986 had ceased and come to an end before the award of compensation was made. It being the latter case the period for compensation was finite and concluded when the effect of the events of 1986 were no longer to be seen. Thus whether or not the Tribunal erred in law in failing to give a decision that there was an acceleration of a pre-existing condition which was work induced, its failure so to do was, in my view, immaterial.
This takes me to the second ground of appeal, namely that the Tribunal's determination was not based on proper evidence.
In paragraph 31 of his reasons Mr. McMahon said:
"The final incident relied upon was the change to sorting private mail boxes in May 1986. If any pattern is to be perceived from complaints by the applicant to his general practitioner, and from earlier absences from work, one would have to conclude that his recovery from that particular aggravation would also have been equally speedy. It is last mentioned in a certificate by his general practitioner, Dr. Vilo, on 21 July 1986. This is however somewhat equivocal. The certificate merely certified that the applicant was suffering from lumbar back strain. It did not attribute the cause either to an aggravation or to degeneration. Furthermore, there may have been later certificates, although the necessity for certificates for compensation purposes disappeared after a while. Nevertheless, despite the unsatisfactory nature of the evidence, it is the only finite medical opinion which is consistent with the applicant's history of relatively speedy recoveries from aggravations and it is evidence from the applicant's own general practitioner."
Mr. McMahon then in paragraph 33, acknowledging that he was working with "necessarily inadequate evidence" concluded that the incapacity resulting from the two incidents in March and May 1986, not being present when the applicant was examined on 23 December 1986 probably ceased to exist by the time of the last certificate from Dr. Vilo on 21 July 1986. It was for this reason that he expressed the view that the entitlement to compensation ceased on 21 July 1986, a date referred to in Dr. Vilo's certificate.
In evidence before Mr. McMahon were a series of certificates from Dr. Vilo covering the period from 19 May 1986 to 21 July 1986. In the case of the last of these certificates dated 14 July 1986, Dr. Vilo stated that the applicant was suffering from an injured lumber strain and was unfit for normal duties until 21 July 1986. He did not state that the applicant would be fit for duty on 21 July 1986 for the period of the certificate covers only the period of incapacity to which it relates, that is to say, from 14 July to 21 July 1986.
Notwithstanding the doubt that is implicit in Mr. McMahon's comment as to further certificates it is clear from the transcript that the applicant gave evidence that to obtain sickness benefits he had to have certificates once a month and that the certificates given related to his back. However, no other certificate was tendered in evidence later than the certificate given by Dr. Vilo on 14 July 1986.
Mr. McMahon's reasons were criticised on the basis that he was required to rely upon concrete evidence. It was said that if one assumes that the period was a discrete period such that a date must be fixed for ending it, that date must be based on concrete evidence and that in the present case there was no evidence before Mr. McMahon upon which he could base the date that had been selected. Reference was made to what was said by the representative of the respondent during the proceeding where it was implied that on the totality of the medical evidence it was impossible to indicate a precise date at which the total incapacity ceased. The representative said "I do not think I could press that one ought to adopt 21 July as final date from Dr. Vilo. He has not been called to give evidence so we do not know what he would have said on that occasion."
The Tribunal found that the incapacity resulting from the two incidents in March and May 1986 was not present on 23 December 1986 when Dr. Ehrlich examined the applicant and no challenge is made to this finding. In these circumstances the evidentiary situation was that the recovery must have taken place at some time between 21 July 1986 and 23 December 1986 but there was no evidence before the Tribunal as to precisely on what date that recovery took place.
In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of Social Security legislation counselled against using the expression "onus of proof" where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the Administrator although it considers the matter having regard to the material before it rather than the material that was originally before the Administrator. Since the Tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate: s.33(1)(c) and is not bound as such by the rules of evidence it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
It may be that what was said by Woodward J. in McDonald should be confined to the context of Social Security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at p 712 Beaumont J. referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
"Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area (see McDonald v. Director-General of Social Security (1984) 1 FCR 354). However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law
(1982) at p 53:
"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."
Nevertheless as a practical matter an applicant for review in the Tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at p 38 per Morling J.) and ultimately the Tribunal in considering the claim can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the Tribunal all material which it will be necessary for the Tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the Tribunal (and the reason for it not being put before the Tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the Tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant. Before me, however, the issue is not whether the Tribunal's finding was correct or incorrect but merely whether there was a proper foundation for it. The medical certificate, while not of itself proving that the applicant recovered on 21 July, was evidence that the recovery did not take place prior to that time. In my view there was no obligation upon the Tribunal to guess in the absence of evidence when that recovery did in fact take place thereafter so that in accepting 21 July as the date of recovery there was some foundation in fact for the finding and certainly the Tribunal did not commit an error of law in accepting that date. To say so much is only in a practical sense to say that the applicant before the Tribunal had as a practical matter an evidentiary onus to adduce before the Tribunal critical facts upon which the Tribunal could have found more favourably to the applicant than it did.
For these reasons I am of the view that the appeal should be dismissed.
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