Ceric v Prosegur Australia Pty Limited

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FEDERAL COURT OF AUSTRALIA

Ceric v Prosegur Australia Pty Limited [2016] FCA 1068

Appeal from: Ceric and Prosegur Australia Pty Ltd (Compensation) [2015] AATA 590
File number: NSD 1089 of 2015
Judge: PERRAM J
Date of judgment: 7 September 2016
Catchwords:

WORKERS' COMPENSATION – compensation for injuries resulting in incapacity

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether there was evidence before the Tribunal capable of supporting finding of fact
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c) and 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(10A), 5A(1), 14(1), 16 and 19
Cases cited:

Attorney-General (Vic) v Andrews (2007) 230 CLR 369

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Bell v Commissioner of Taxation [2012] FCA 1042

Bushell v Repatriation Commission (1992) 175 CLR 408

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Fox v Percy (2003) 214 CLR 118

Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259

Sullivan v Civil Aviation Safety Authority [2013] FCA 1362

VWBF v Minister for Immigrationand Multicultural and Indigenous Affairs (2006) 154 FCR 302

Watts v Rake (1960) 108 CLR 158

Date of hearing: 6 July 2016
Registry: New South Wales
Division: General Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 72
Counsel for the Applicant: Mr J Phillips SC with Mr L Robison
Solicitor for the Applicant: John Stonham & Co. Lawyers
Counsel for the Respondent: Mr P Hanks QC with Ms F Gordon
Solicitor for the Respondent: Moray & Agnew Lawyers

ORDERS

NSD 1089 of 2015
BETWEEN:

AMIR CERIC

Applicant
AND:

PROSEGUR AUSTRALIA PTY LIMITED

Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

7 SEPTEMBER 2016

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal in Ceric v Prosegur Australia Pty Ltd in file number 2013/2063 of 14 August 2015 be set aside.

3.The applicant’s review application be redetermined according to law by the Tribunal differently constituted.

4.The respondent pay the applicant’s costs of the proceedings in this Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

PERRAM J:

1.      Introduction

  1. Mr Ceric was employed by the respondent (‘Prosegur’) as a security guard.  Principally his work involved attending to the safe transport and handling of cash in armoured vehicles.  At 6am on Thursday, 24 May 2012, Mr Ceric began his shift.  The final delivery of the day was to a convenience store in Carlton in Sydney’s south.  The armoured truck contained some metal stairs, which could be accessed via a ‘man trap’ inside the truck.  Whilst descending these stairs, Mr Ceric slipped on a wet step and landed on his feet on the footpath.  This caused him to feel pain in his back and neck.  There are further aspects of this incident which are relevant but they are, to an extent, controversial and I will return to them later when the picture…

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Details
Case
[2016] FCA 1068
Decision Date

CaseChat Overview and Summary

In Ceric v Prosegur Australia Pty Limited, Mr Ceric, a security guard for Prosegur, sought workers' compensation for injuries sustained during his employment. The incident occurred on 24 May 2012 when Mr Ceric slipped on a wet step inside an armoured vehicle while descending metal stairs, causing pain in his back and neck. Prosegur's insurer, QBE, initially accepted Mr Ceric's claim for incapacity until 4 August 2012 but refused further compensation, leading to a series of reviews and appeals. Mr Ceric’s claim was ultimately dismissed by the Administrative Appeals Tribunal, prompting an appeal to the Federal Court of Australia.

The central legal issues in this case were whether the Tribunal's decision was supported by the evidence and whether the Tribunal correctly interpreted the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Specifically, the Court had to determine if the Tribunal had sufficient evidence to conclude that Mr Ceric was not incapacitated for work after 4 August 2012 and whether his medical expenses incurred post this date were reasonably incurred. The appeal hinged on the interpretation of the statutory provisions and the administrative law principles governing the Tribunal's role in reviewing decisions.

The Court found that the Tribunal’s decision was flawed as it did not properly consider the evidence or apply the relevant legal principles. The Court held that the Tribunal was required to arrive at the correct decision based on the material before it, without the need for a burden of proof as might be imposed in adversarial proceedings. The Tribunal's failure to adequately consider the evidence, particularly regarding Mr Ceric’s health status post 4 August 2012, was deemed a significant error. As a result, the Court allowed the appeal, set aside the Tribunal's decision, and remitted the matter for reconsideration by a differently constituted Tribunal. Additionally, the Court ordered that Prosegur pay Mr Ceric's costs of the proceedings.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal in Ceric v Prosegur Australia Pty Ltd in file number 2013/2063 of 14 August 2015 be set aside.

3. The applicant’s review application be redetermined according to law by the Tribunal differently constituted.

4. The respondent pay the applicant’s costs of the proceedings in this Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Mr Ceric was employed by the respondent (‘Prosegur’) as a security guard. Principally his work involved attending to the safe transport and handling of cash in armoured vehicles. At 6am on Thursday, 24 May 2012, Mr Ceric began his shift. The final delivery of the day was to a convenience store in Carlton in Sydney’s south. The armoured truck contained some metal stairs, which could be accessed via a ‘man trap’ inside the truck. Whilst descending these stairs, Mr Ceric slipped on a wet step and landed on his feet on the footpath. This caused him to feel pain in his back and neck. There are further aspects of this incident which are relevant but they are, to an extent, controversial and I will return to them later when the picture is more complete. In any event, Mr Ceric returned to the depot and reported the incident. On or around 14 June 2012, Mr Ceric then made a claim on his employer, Prosegur, for workers compensation on the basis that he was incapacitated for work. Prosegur had insured its liability with an insurer, QBE. It was accepted by QBE’s Case Manager that Mr Ceric was incapacitated for work but only until 4 August 2012. The Case Manager refused, therefore, his claim for compensation for incapacity to work after 4 August 2012. She also rejected his claim for the payment of his out of pocket medical expenses after that date. Mr Ceric sought an internal review of this decision by a Reconsiderations Officer but the initial decision was affirmed. He then applied for a review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’) but it too affirmed the decision. It is from the Tribunal’s decision that he now appeals to this Court. For the reasons which follow, the appeal will be allowed.2. Background matters Prosegur is a licensed corporation for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’), and it is the provisions of that statute that regulate Mr Ceric’s claim. Following various factual inquiries and medical examinations of Mr Ceric, QBE’s Case Manager made a decision on Mr Ceric’s claim on 27 September 2012. The relevant portion of this determination was as follows:I refer to your claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of “neck and lower back” sustained on 24/05/2012.Your claim has been considered in accordance with the provisions of the SRC Act and taking into account all available evidence (medical and other) presently before me, I have determined that Chubb Security Services Ltd. is liable to pay you compensation in respect of “musculo-ligamentous back strain” up to and including 3/08/2012.In addition based on the evidence you have ceased to suffer from the effects of the compensable injury on 4/08/2012. I interpolate that Chubb Security Services Ltd is the former name of Prosegur. The determination was accompanied by a detailed set of reasons. It will be seen that the decision consisted principally of two elements. One was an acceptance that Mr Ceric had suffered a musculo-ligamentous back strain on 24 May 2012 and was entitled to compensation in respect of that injury. The other was that Mr Ceric had ceased to suffer from the effects of that injury from 4 August 2012.

Evidence

Evidence Before The Court

If the Tribunal had accepted that Mr Ceric was in bad health on and after 4 August 2012 this might have had some relevance. However, it did not. In that circumstance, Watts v Rake is irrelevant.7. No evidence (Grounds 4 and 5) Several points were collected together under this heading. First, it was said that there was no evidence that Mr Ceric was not incapacitated on and after 4 August 2012 and, in particular, that Professor Ehrlich had not opined to the contrary. This argument should not be accepted. Professor Ehrlich’s evidence was that if one accepted Mr Ceric’s account of events as truthful, then the pain from which Mr Ceric said he was suffering could be attributed to the incident on 24 May 2012. As a matter of formality, it is correct to say that Professor Ehrlich made no positive suggestion that Mr Ceric was not incapacitated on and from 4 August 2012. But the formality of this statement and its corresponding aridness in the field of persuasion should be acknowledged. Professor Ehrlich’s opinion was expressed as a conditional statement the hypothesis of which rested upon the reader’s belief in Mr Ceric’s veracity. When there is brought to account, as there must be, the fact that the Tribunal, as the relevant reader, did not believe Mr Ceric’s version was wholly truthful, then Professor Ehrlich’s evidence had the content of a conditional statement the hypothesis for which had not been satisfied. This meant that the conclusion (that the pain he was suffering from was a result of the 24 May 2012 incident) was not established. Mr Ceric is right to point out that a failure to satisfy the hypothesis does not result in proof of the opposite of the conclusion. For example, it may well be the case that if the sky is blue it is not raining, but it does not follow that just because the sky is not blue that it is raining. Nevertheless, in my opinion, this matter goes nowhere. The questions before the Tribunal were those arising from ss 16 and 19 of the SRC Act, that is to say, whether Mr Ceric remained incapacitated after 4 August 2012 and whether any medical expenses incurred by him after that date could be seen as having been reasonably incurred. Although in various contexts the concept of the onus or burden of proof is sometimes imposed on particular kinds of proceedings, in the Tribunal that is not so (at least in the present case; cf. Taxation Administration Act 1953 (Cth), s 14ZZK(b)). Part VI of the SRC Act deals with review by the Tribunal of decisions made by Comcare or, as here, a licensed employer. Although Part VI makes some modification to the general procedures of the Tribunal, such minor changes as are wrought do not include amongst their number the erection of a burden of proof. Hence, what Brennan J said in Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 remains apposite: the Tribunal is an administrative decision maker ‘under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. … The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.’ See also the helpful discussion by Jagot J of the issue in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362 at [31]-[34].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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