Cervoj v Australian Telecommunications Commission

[1990] FCA 834

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
) JUDGMENT NO. ...._
NORTHERN TERRITORY DISTRICT	) NO. DG 19 1989
)
REGISTRY GENERAL DIVISION	)

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR B J MCMAHON,

DEPUTY PRESIDENT, DR D J HOWELL, MEMBER AND MRS M T LEWIS, MEMBER

BETWEEN:  ROSEMARY CERVOJ

. FEDERAL COURT Applicant

. " OF AUSTRAUA

21 I A N 2003 AND: AUSTRALIAN
TELECOMMUNICATIONS

uBRARY COMMISSION

\v. Respondent

CORAM: Burchett J. 3

PLACE: Darwin

DATE : 14 May 1990

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

In this matter, the applicant is one of those persons who sadly find themselves unable to return to employment after leaving work and going on compensation. She was treated as having suffered a repetition strain injury in 1985, and has not

L. worked continuously since then. She has made some attempts at returning to work unsuccessfully.

worked over a long period, or long periods, with switchboards as a telephonist, but she had come to suffer for some time, up to

The history of the applicant's illness is set out at some length in the reasons of the Administrative Appeals Tribunal, and I do not think there is any point in my repeating that detailed account. It is sufficient to say that she had

her ceasing to work, pain in her right wrist and forearm, and after some time she also had pain in her neck and pain extending into other areas.

There was a conflict of medical evidence before the
tribunal, and in particular a conflict between the views of Dr

A.P. Millar, whose qualifications are of the highest in this

area, and Dr Henke, whose qualifications entitle him to be referred to in similar terms. The tribunal plainly had to make a choice between them. Dr Millar supported the applicant's case in plain and firm language, making clear his opinion that her

1. continuing complaints of pain, attributable to the neck area, had an appropriate connection with the repetitive strain injury he thought she had sustained, which had originally manifested itself in the wrist, forearm and hand. A number of other doctors provided more or less support for Dr Henke.

   Both doctors were cross-examined. Dr Henke, in cross-examination, was asked:

   "Well, then, do you consider that her neck pain is or is not part of the condition which

L d commenced in her hand or in her arm?"

He answered: 

"No, I do not think it is. I think you have to

regard it as being a separate entity."

Now, that was to put his evidence in the plainest conflict with the views of Dr Millar, and the tribunal had the task of choosing where these experts disagreed. Several of the tribunal's criticisms of Dr Millar, in the course of their reasoning, may seem to some less than persuasive, but I can see no reason at all to think that the members fell into any error of law in their discussion of Dr Millar's views. There was powerful evidence to the contrary of the opinion he had espoused; they were perfectly entitled to refer it, and perfectly entitled to put in their reasons matters which were not fanciful or plainly illogical, but simply were their reasoning process on matters of fact, and not of law.

It was argued that the tribunal had made a wrong use of the medical knowledge of one of its members, but that does not seem to me to be correct. As I read the reasoning, no more was done than it has often been held a specialist tribunal is entitled to do, that is, to make use of the specialised knowledge and experience it has acquired in evaluating evidence put before it.

ii Then it was put that the principle in Browne v. Dunn

(1893) 6 R 67 had been offended by a failure to put in sufficient

views had been reduced to writing, and counsel did not suggest	detail to Dr Millar the views of Dr Henke. However, Dr Henkefs
that his written opinion was not available to both sides before Dr Millar had left the witness-box. Furthermore, at page 31 of the tran$cript, it was expressly and squarely put to Dr Millar: "Do you accept the hypothesis that the pain is referred from the neck in this case?" He answered, "No" , and was then in a
position, if counsel for the applicant had chosen to ask him to do so, to elaborate upon that answer in re-examination. In fact, no elaboration was sought, and I think the reason was the perfectly valid one that all concerned knew, at the hearing, that the parties were firmly at issue on the point.
Dr Millar is an extremely experienced witness, and if his evidence had the quality of brevity, that was not really the basis of the criticism advanced by the tribunal. The basis of the criticism was rather that his characteristic incisiveness had stopped short of any clear statement of a basis, acceptable to

'W the tribunal, for a finding that the applicantls admitted condition was sufficiently related to her work.

In my opinion, this case does not involve any question of law, but is wholly concerned with what may well have been difficult medical issues - issues on which the tribunal was perfectly entitled to come to the conclusion to which it came, though of course it might also have come to a different conclusion, and might equally have not been open to challenge. For these reasons, the appeal must be dismissed. The appeal is dismissed with costs.

I certify that this and the

preceding three (3) pages are a true copy of the Reasons for

Dated: 14 May 1990