Comcare Australia v Wilson, Peter
[1997] FCA 555
•26 Jun 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 690 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: COMCARE AUSTRALIA
(Applicant)
AND: PETER WILSON
(Respondent)
CORAM: Ryan J
DATE: 26 June 1997
PLACE: Melbourne
MINUTES OF ORDER
THE COURT ORDERS:
That the application be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 690 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: COMCARE AUSTRALIA
(Applicant)
AND: PETER WILSON
(Respondent)
CORAM: Ryan J
DATE: 26 June 1997
PLACE: Melbourne
REASONS FOR JUDGMENT
RYAN J: This is an application by way of appeal under s. 44(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") setting aside a reviewable decision of a delegate of the applicant, Comcare Australia ("Comcare") disallowing a claim for compensation under the Rehabilitation and Compensation Act 1988 ("the Act"). The delegate disallowed the respondent's claim on the basis of a Final Medical Board Report which stated that the respondent had failed to disclose bilateral spondylosis L5/S1 on a form designated "PM165".
The respondent, who is now aged twenty-five years, on 27 November 1991 completed a medical history questionnaire as a prerequisite to recruitment in the Australian Army. He had earlier sustained a number of sporting injuries including an incident in summer of 1989/1990 as a result of which he suffered back pain which he attributed to being a medium pace bowler with a local cricket club. He was treated by Dr James of the Croydon Sports Medicine Clinic and was required to wear a spinal brace for about six weeks and to undertake physiotherapy and exercise. Thereafter, his back was asymptomatic and he played soccer with Monbulk in the Second Division Provincial League in 1990 and 1991. In the latter year, he completed his full-time secondary education. The evidence before the Tribunal as to the respondent's history from the end of 1991 until his discharge from the Army on 1 November 1992 disclosed that he had filled up a medical questionnaire on 27 November 1991. The Tribunal summarised the evidence of that matter in these words:
On 27 November 1991 (as is evidenced by T-19) Mr Wilson completed a medical history questionnaire prior to entry into the army. A number of questions were asked as to whether he had ever suffered any prior illnesses or injuries. He disclosed having previously suffered a hernia, an ankle injury and "fractured bones" but placed a tick in a column headed "no" beside the question of whether he had ever suffered a back injury. When asked by Mr Moulds whether he could explain that entry Mr Wilson said "made a mistake, didn't even know I'd done it. Just messed up made a mistake". He further said that the entry made by him was not deliberate nor was it wilful.
The respondent was inducted into the Army in January 1992 and was transferred to Kapooka in New South Wales. About three days after his arrival at Kapooka, he completed a "medical
induction declaration". The Tribunal described that document in these terms:
The document is dated 29 January 1992. In handwriting which Mr Wilson identified as his own, he recorded that he suffered "fractured growth plate left foot 1989, green stick fracture left and right wrists 1985, 86, fractured lower vertebrae 1990, double hernia 1978".
The respondent discussed certain aspects of that second questionnaire with an Army medical officer and subsequently underwent basic training. His evidence of that experience and his later service at Enoggera in Queensland was recounted by the Tribunal in these paragraphs:
Mr Wilson said that he commenced basic training at Kapooka which involved a great deal of hiking, marching and field exercises which he basically described as fitness work. This training comprised up to 11 weeks during which time he did not suffer any back pain and was presented with a physical training award upon conclusion of his time at Kapooka. He said only one presentation was awarded for each platoon and it was awarded to him in recognition of both his fitness (which was regarded as being above average) and for his assistance to other recruits. He said that a recommendation was also made that he undertake NC training which would give him either Lance Corporal or Corporal status.
Mr Wilson was thereafter transferred to Enoggera in Queensland for specific infantry training which involved a great deal of pack marching (with full pack) including carrying of weapons, ammunition, food, clothing and tent. He estimated his pack to weigh between 30 and 40 kilos and marching would comprise between 5 and 20 kilometres per day over hilly country. His pack comprised sufficient rations and supplies for between one and two weeks pack marching. In the course of these exercises he and other recruits were required to carry logs and jeep tyres.
During the course of one of these exercises Mr Wilson noticed back pain during an 8 kilometre march whilst carrying his pack. He reported it upon return to barracks. Mr Wilson recalled the back pain he suffered whilst playing cricket as a youth and said the back pain suffered whilst in the army was greater in severity because the pain extended into his legs. He said he made a complaint of the back pain and a recommendation was made that he be provided with a lighter pack, which was not provided.
Mr Wilson continued with his training despite the presence of back pain. Following completion of an obstacle course he was asked by an instructor whether he "had any problems". Upon disclosing that he was suffering back pain he was told by the instructor to attend a doctor.
Upon attending a doctor Mr Wilson recalled having pain extending from his lower back into his legs and radiating as far as his calves. He was restricted by the doctor from carrying packs for a week. In the intervening week however Mr Wilson completed another
field exercise which comprised digging trenches being 5 feet deep and 6 feet long. The exercises also comprised marching and wearing full pack. Mr Wilson recalled back pain at the commencement of the exercise which was worsened when digging trenches. He said he complained to his lieutenant but was instructed to continue to dig. He recalled having difficulty straightening after periods of bending whilst digging and whilst it appears that the lieutenant recognised that he was injured Mr Wilson was instructed to dig at his own pace. He was also instructed by the lieutenant that he would have to remain with his squad until returning to base before he could see a doctor. Mr Wilson recalled that that occurred approximately 1 week later.
Thereafter, the respondent was placed on restricted light duty until his discharge. He then worked part-time for between ten and sixteen hours a week as a barman at the York Hotel, Lilydale and in January 1993 commenced a hospitality course at the William Angliss College which he pursued until May 1994 when he commenced full-time employment as a blackjack croupier at the Crown Casino. The Tribunal noted in respect of the latter employment:
In May 1994 Mr Wilson commenced employment as a blackjack croupier at the Crown Casino in Melbourne. He said the work involved mainly standing, but in shifts of 1 hour only then punctuated by a 15 minute break. He said at the end of each day his back was "really sore" and said that in recent times he had been learning the job as a croupier in roulette but he had worsening pain.
...
Shortly prior to commencing employment with Crown Casino Mr Wilson completed a declaration where he declared "every statement given by me in completing this form is true and correct ... and I have not wilfully suppressed any material fact". On the third page of the application under the heading of "General Health," Mr Wilson was asked whether he had any disability which would either prevent him from performing the work reasonably required of a dealer or would be likely to cause a risk of injury to others, or that could be further aggravated by performing the work of a dealer. Beside each of those questions he circled the word "No". A statement also appears upon page 3 of the application where Mr Wilson was asked to "Please answer each of these questions having considered each of the following possible disabilities - General ill health (such as specific illness or disability)"; the word "No" is written beside that question. Mr Wilson said that his answers then were truthfully given, that he did not believe that his back injury would be regarded as an illness or disability and whilst the questions referred to his health he said they were not specific.
The applicant said that he was aware that the work would involve standing and reaching over tables but did not believe that the work would aggravate his injury because he had made enquiries as to the duties of a croupier and was aware that work was undertaken in shifts of one hour rotation where there would thereafter be
opportunities to rest. Whilst he was experiencing back pain by reason of his work as a roulette croupier, his initial training, that is immediately after the forms were completed, was as a black jack croupier which he managed well.
When asked to explain why upon his curriculum vitae which he attached to his application for employment at the Crown Casino that he referred to his health as "excellent", Mr Wilson said that he was of excellent health and that "back isn't health". In the job application to Crown Casino Mr Wilson was asked "what specific personal qualities and experiences do you think you can bring to the position of dealer". He answered "I am a confident and outgoing person who takes pride in his work. I have the ability to adapt and be flexible not only in work hours but other areas. I enjoy being in the company of others and of service to them". When asked by Mr McInnis why he chose apparently not to disclose the presence of back injury and an inability to stand for long periods, Mr Wilson said that he did not think of disclosing his back injury "because you are supposed to promote yourself not put yourself down". When asked by Mr McInnis to explain his disclosure of "spare time interests" of soccer, cricket, music, dancing, bushwalking and skiing Mr Wilson said that he enjoyed these sports as an observer and said that he was a "keen fan". He denied that he played sport, admitted that he listened to music but that he did not dance. He regarded these interests as being hobbies in which he did not actually participate. His interest in snow skiing extended only to reading books upon that sport.
After reviewing the evidence of Mr Gangell, who had been the respondent's supervisor at the Lilydale hotel, and the medical evidence, the Tribunal noted the competing submissions of Counsel and concluded its reasons first on whether the respondent had made a wilful and false representation by the finding that the statement in the original Army medical questionnaire that he had never had, and did not suffer from, a back injury was false but not wilfully so. The Tribunal directed itself as to the requirement in s. 7(7) of the Act that a representation must be "wilful and false" by referring to the judgment of Jenkinson J in Comcare v Porter (1996) 138 ALR 409 at 478-479. The Tribunal's own reasoning on the application of the concept to the facts before it was exposed in these paragraphs:
106.I am satisfied that the applicant did make a mistake and/or was careless in his answer to question 52c. The answer given may be explained either by his rushing to complete the form (the question is
placed near the end of the form) as he said in evidence, or that his carelessness with respect to that question may be explained by simple mistake as he also said in his evidence.
107.The answers given to the questionnaire amount to "representations" and the purpose of these representations is connected with "proposed employment" (s.7(7)). But it is the whole of the answers (the representations) to the questions which the employer would have had regard when assessing the potential of the applicant for employment. In the context of mistake or carelessness in his answer to question 52c I note the applicant also represented to the employer, in the same form, that he had "experimented with marijuana or with drugs (other than prescribed)" potentially therefore exposing himself to, or at least at risk of, criminal proceedings. Such a disclosure, in my opinion, is consistent with conduct of a person who is honest and credit worthy. It supports a conclusion that the falsity of his answer to question 52c was unintentional or casual or careless but not wilful. I am also moved by the applicant's disclosure of the back injury in January 1992 (T-25) being the month after enlistment where he then described the injury as a "fractured lower vertebrae 1990". Disclosure then, I am satisfied, reinforces the mistake or carelessness in the answer given on the form of November 1991. It would be farcical to suggest that having been enlisted he could regard his employment as then being secure by him subsequently admitting a prior back injury.
108.The preamble however to the January 1992 questionnaire leaves in my mind no reasonable doubt to these conclusions because it asks "Is there any medical condition or medical history that you failed to declare to the recruiting centre that you wish to declare now". The answer then given was "no". The applicant then went on to disclose the back injury that is, the injury that he did not declare in the earlier questionnaire. The carelessness or ignorance of the mistake made earlier is therefore evident because if he knew - wilfully or otherwise - that he had not disclosed the back injury he would not, in my opinion, have said there was nothing to declare then (January 1992) that he had not declared earlier and then proceed to admit the back injury and describe it.
109.In reaching this conclusion I am aware that compensation legislation is beneficial and socially remedial. It should be interpreted and applied according to such characteristics. It would be a dire and unforgiving consequence to disentitle compensation if a mistake was regarded as a wilful act.
110.For the above reasons, and having regard to the earlier authorities, I am not satisfied that the applicant has made a wilful and false representation.
Those paragraphs were contended by Mr McInnis of Counsel for Comcare to reveal an error of law for which this Court should grant relief under s. 44 of the AAT Act. I am not able to conclude and, indeed, Mr McInnis did not contend, that the Tribunal misdirected itself in law as to the concept of a "wilful and false" representation embodied in s. 7(7) of the Act. That sub-section provides:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
The Tribunal clearly saw the reference in that sub-section to a "wilful and false representation" as being conjunctive in the sense that a merely false representation does not, of itself, render a disease or the aggravation of a disease, non-compensable as an injury. The representation must also be "wilful" in the sense that it is made deliberately without any belief as to its truth. Thus, in the passage from Comcare v Porter (1996) 138 ALR 469 cited by the Tribunal, Jenkinson J, after referring to the judgment of Barwick CJ in Iannella v French (1968) 119 CLR 84 at 94-5, said:
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s 7(7). The verbal context supplied by the phrase "false representation" exposes the legislature's attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word "false", and the representor's knowledge of the falsity, commonly signified in civil proceedings by the word "fraudulent": Halsbury's Laws of England, 4th ed, vol 31, paras 1044, 1059, 1063-1065; R v Aspinall (1876) 2 QBD 48 at 56-7. The clause "if the employee has ... made a ... false representation" may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of "wilful" in that verbal context excites the expectation that what the whole clause in the subsection requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
In Commonwealth v Christoffelsz (1988) 18 FCR 415; 79 ALR 611 and in Owens v Australian Postal Corp (Fed C of A, VG No 510 of 1992; 6 July 1994, unreported) the reasons for judgment of Neaves J and Keely J respectively assume the correctness of the construction I have given s 7(7), which was not called in question in either case.
However, it was contended on behalf of the applicant that the Tribunal had misdirected itself in law by regarding as relevant to the question of wilfulness, Mr Wilson's disclosure in January 1992 that he had suffered a "fractured lower vertebrae" in 1990, and his acknowledgement, by ticking another box in the earlier form in which he had represented that he had not sustained a back injury, that he had "experimented with marijuana or with drugs other than prescribed". The general criticism was made that, in its treatment of this and other questions, the Tribunal had been guilty of an error of law of the kind identified by Hill J in Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 where his Honour observed, at 329:
The failure of the Tribunal to make findings of material facts constitutes a breach of s 43(2B) of the Administrative Appeals Tribunal Act 1975 and an error of law, justifying the setting aside of the Tribunal's decision and the remission of the matter to the Tribunal for reconsideration: East Finchley Pty Ltd v FCT (1989) 20 ATR 1623; 89 ATC 5280; Stasos v Tax Agents' Board of NSW (1990) 21 ATR 974; 90 ATC 4950; FCT v Studdert (1991) 22 ATR 762; 91 ATC 5006. The obligation under s 43(2B) is not satisfied by a statement of the Tribunal's conclusion of fact. The parties are entitled to know what evidence the Tribunal accepted and what evidence it took into account. Likewise, the parties are entitled to know what evidence the Tribunal rejected. Without this knowledge the parties will have but an incomplete idea of the Tribunal's process of reasoning and a lessened respect for the Tribunal's decision-making process.
It will be observed that it is not contended on behalf of Comcare that there was no evidence to support the Tribunal's finding that the misrepresentation in the form completed on 27 November 1991 was not wilful. That contention was clearly not available because Mr Wilson himself testified unequivocally that he had made a mistake. In my view, the Tribunal, in this context, observed Hill J's admonition in Copperart both by indicating that it accepted Mr Wilson's evidence that he had
made a mistake in ticking the "no" column in answer to the question whether he had ever suffered a back injury and by giving two of its reasons for that acceptance.
Each of those reasons was said on behalf of Comcare to have been an irrelevant consideration for the Tribunal to have taken into account in assessing Mr Wilson's state of mind at the time when he made the representation of 27 November 1991. In the first place it was said that the disclosure of experimentation with marijuana was irrelevant to whether Mr Wilson, in filling in a later part of the same form, had wilfully made a false representation that he had never sustained a back injury. As I understand the reasoning of the Tribunal, as explained in para. 107 quoted above, it was that, had Mr Wilson set out deliberately to conceal matters which would militate against his recruitment, he would not have disclosed experimentation with an illicit drug which he could reasonably have regarded as likely to be viewed as discreditable by the Army authorities. On that understanding of the Tribunal's reasons, it cannot be said, as a matter of law, that a frank disclosure made in one part of a document is not available to be taken into account in considering whether a misrepresentation in another part of the same document has been made innocently. Whether this Court would have taken the same view, or attached the same weight to that matter, is not to the point. It was open to the Tribunal in making the ultimate finding of fact required by s. 7(7) to have regard to the applicant's frankness in making other, related, disclosures.
Similarly, I consider that it was also open to the Tribunal to have regard to the fact that Mr Wilson did not perpetuate what he claimed to have been a mistaken non-disclosure of a back injury when he completed the January 1992 questionnaire disclosing a "fractured lower vertebrae 1990". The Tribunal's reasoning, as exposed in paras. 107 and 108 quoted above, was that, had Mr Wilson, in November 1991, deliberately concealed his back injury, he would have been unlikely voluntarily to have disclosed it to the Army authorities two or three months later. The logic of that reasoning in aid of the Tribunal's fact-finding function cannot be disputed as a matter of law.
Mr McInnis for Comcare pointed to a remark by Keely J in Owens v Australian Postal Corporation (unreported 6 July 1994) to the effect that "a `wilful and false representation' once made cannot be `superseded' although such a representation might not be held to be `wilful' if the employee immediately took steps to correct the false representation". However, his Honour was not there denying that use could be made of a subsequent true representation to determine the state of mind of the maker of an earlier false representation. All that he can be taken to have held is that a false representation concededly made with knowledge of its falsity, is not deprived of the effect attributed to it by s. 7(7) merely because the representor or his or her agent has later acquainted the representee with the truth.
It was put by Mr McInnis that two circumstances precluded reliance on the questionnaire of January 1992 in the way in which it was used by the Tribunal. First, he pointed to the note which prefaced that questionnaire:
CONCEALING ANY PREVIOUS MEDICAL HISTORY AT THIS STAGE OF YOUR INDUCTION IS AN OFFENCE AND MAY MAKE YOU LIABLE TO DISCIPLINARY ACTION UNDER THE DEFENCE FORCE DISCIPLINE ACT SECTION 57.
That injunction, it was suggested, would have deterred Mr Wilson from perpetuating what was said to have been the deliberate falsehood perpetrated in the form completed in November 1991. Secondly, it was put that, by January 1992, Mr Wilson had been accepted as a recruit so that the motive imputed to him for the earlier, presumptively deliberate, falsehood was no longer operative.
The weight to be attached to each of these matters, as tending to detract from the effect of the January 1992 questionnaire which the Tribunal regarded as confirmatory of Mr Wilson's direct testimony, was, I consider, a matter for the Tribunal. It was not precluded as a matter of law or logic from discounting either matter in the way which it apparently did, as not diminishing the probative of value of that testimony.
Somewhat inconsistently, it was also argued on behalf of Comcare that the Tribunal had failed to take into account, in relation to the wilfulness or otherwise of the representation of 27 November 1991, the respondent's statement on 13 December 1993 when he applied for a position with the Crown Casino. The relevant part of that application form, as completed by Mr Wilson was:
General Health
Do you have any disability:
.that would prevent you from performing the work
reasonably required of a Dealer? Yes/NO
or
.that would be likely to cause a risk of injury
to others (e.g. patrons and employees)? Yes/NO
or
.that could be further aggravated by performing
the work of a Dealer?
Please answer each of these questions having considered
each of the following possible disabilities:
General ill health (such as a specific illness
or disability), NO
Respiratory Illness, NO
Colour Blindness/Visual Impairment NO
Hearing Impairment, NO
Physical factors that prevent/inhibit you from
standing for long periods over an eight hour shift, and/or
Factors that prevent you from working eight hour
rotational shifts NO
The Tribunal was entitled to regard the statements in that part of the Crown Casino form as another deliberate concealment from a prospective employer of the earlier back injury. Equally, however, it was open to the Tribunal to accept, as I infer it did, Mr Wilson's evidence under cross-examination that he did not regard questions on the Crown Casino form related to his "general health" or "general ill-health" as directed to muscular-skeletal conditions of the back. That evidence, in the course of which the Tribunal expressly intervened, was "back isn't health ... I don't regard my back as (ill) health. I'm taking health as in if I'm sick or whatever. If I'm dying of cancer, that's to do with health."
It is sufficient for the purposes of s. 43(2B) of the AAT Act for the Tribunal to refer in a summary way to the evidence on which its findings of fact have been based and to allow some parts of that evidence to be gleaned by inference. The sub-section is in these terms:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
In Polites v Commissioner of Taxation [1988] 2 ATC 5029 Lockhart J observed, at 5032:
I have observed a distinct and growing tendency in this Court when appeals are brought from administrative tribunals including appeals on a question of law from the Administrative appeals Tribunal under subsec. 44(1) of the Administrative Appeals Tribunal Act, for the Court to be asked to construe the tribunal's reasons for its decision minutely and finely and with an eye keenly attuned to the perception of error. The Administrative Appeals Tribunal is required by para. 43(2B) of the Administrative Appeals Tribunal Act to include in its written reasons for decision "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". I repeat what has been said by other members of this Court in the cases mentioned below and by myself on more than one occasion, that when this Court hears appeals from administrative tribunals - which are the bodies entrusted by Parliament with the task of reviewing decisions of a particular administrative character - the Court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole. I agree with the view expressed by Fisher J. in Blackwood Hodge (Aust.) Pty. Ltd. v. Collector of Customer (N.S.W.) (No. 2) (1980) 3 A.L.D. 38 at p. 49 with respect to a decision of the Administrative Appeals Tribunal relating to the Customs Tariff:
"It is my firm view that this Court when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of this nature, should adopt a restrained approach. Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision. This does not mean that when an error of law is identified, the court should be reluctant to intervene. In fact, it is under a duty to do so. Rather it should heed the comments of Davies LJ (as he then was) in R. v. Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No. 2) [1966] 2 Q.B. 31 at 50:
`I should like to echo the words of my Lord, Lord Denning MR, in saying that I deprecate the practice, and hope it would not continue, of attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by the various bodies and authorities set up under the Act of 1946.'
As Lord Radcliffe said in Edwards v. Bairstow [1956] A.C. 14 at 38:
`... by the system that has been set up the commissioners are the first tribunal to try an appeal, and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The court is not a second opinion, where there is reasonable ground for the first.'"
See also Bisley Investment Corporation & Anor v. Australian Broadcasting Tribunal & Anor (1982) 40 A.L.R. 233 per Lockhart J. at p. 251, per Sheppard J. at p. 255; Steed v. Minister for Immigration (1981) 4 A.L.D. 126 per Fox J. at p. 127 and F.C. of T. v. Cainero 88 ATC 4427; (1988) 19 A.T.R. 1301 per Foster J. at ATC pp. 4430-4431; A.T.R. pp. 1305-1306. I agree with all those statements made by members of this Court from time to time.
In Federal Commissioner of Taxation v Cainero [1988] 2 ATC 4427 Foster J at 443 referred to Bisley Investment Corporation v Australian Broadcasting Tribunal and continued:
Quite clearly, in Bisley, the Full Court (Lockhart, Sheppard and Morling JJ.) were of the view that sec. 43(2B) imposed no requirement upon the Tribunal in its statement of reasons to refer specifically to all findings of fact made by it. It was obviously regarded as sufficient if such findings could reasonably be inferred from the Tribunal's statement of reasons in the context in which they were given. As Sheppard J. said (at p. 255):
"The section does not impose upon the Tribunal, which is often composed of members who are not trained in the law, any standard of perfection. I consider the provisions of the section to be directory rather than mandatory. Substantial compliance is what is required and clearly that is here present."
It is equally clear in the present case that the Tribunal accepted Mr Wilson as a witness of truth when he said, as summarized at para. 106 of the reasons, that the error in placing a tick in the wrong column of the form completed on 27 November 1991 was due to rushing to complete the form or to a simple mistake. From the acceptance of that evidence, it is to be inferred that the Tribunal was not persuaded that other evidence, including that contained in the Crown Casino form, was of sufficient weight to displace its impression of Mr
Wilson as a credible witness. It was not necessary for the Tribunal expressly to rehearse each part of that evidence or to indicate why it declined to give it the effect contended for by Comcare.
There are two aspects to the other finding of the Tribunal which has been attacked by Counsel for Comcare. That was to the effect that Mr Wilson had suffered a permanent aggravation of his thoraco-lumbar spine as a result of his Army service and that consequently he had been incapacitated from working full-time as a barman between November 1992 and May 1994. The relevant conclusion expressed at para. 116 of the Tribunal's reasons was as follows:
On balance I am satisfied that the applicant has suffered a permanent aggravation of his thoraco lumbar spine by his army employment. Whilst that aggravation has not been to a level sufficient to give him an entitlement to a permanent impairment under s.24 I am nonetheless satisfied that the ability of the applicant to earn income was affected between November 1992 and May 1994 as a result of that aggravation.
The balance there referred to was apparently reached after a consideration of the conflicting evidence of various expert medical witnesses.
The Tribunal posed in these terms the question which turned on the medical evidence:
112.During the hearing it was acknowledged that the applicant did have a back injury prior to enlistment with the Army. The issue then became whether the applicant suffered a fresh injury by his army employment or whether the army employment aggravated the pre-existing injury and then if so whether that aggravation was of a permanent or temporary nature.
It then summarized the evidence given respectively by Dr Lefkovits, Mr Speck and Mr Hadley. Dr Lefkovits is a consultant physician with an interest in rheumatology who was called by Comcare to give evidence. He had examined Mr Wilson at Comcare's request and furnished a reported dated 5 December 1994 in which he expressed this conclusion:
I suspect that he did suffer a musculo-skeletal injury to his back as a consequence of cricket rather than a true stress fracture. I also suspect that a similar scenario occurred whilst he was in the Army, namely that he suffered a temporary musculo-ligamentous injury to the structures around his lumbar spine and possibly some aggravation of the underlying constitutional disorder. This aggravation would have lasted only a matter of months. His symptomatology would then have returned back to whatever symptoms the natural history of this condition would have ultimately produced. I therefore do not think that this gentleman has suffered any permanent injury to his back or elsewhere as a consequence of his Army service. He does have a 5% Whole Person Impairment according to the Comcare Guide Lines but this is due to his underlying constitutional disorder. It would be unwise for this man to return to activities such as he performed in the Army as he will almost certainly suffer further aggravation of his back symptoms, which are at this stage mainly of nuisance value only.
Dr Lefkovits was examined and cross-examined orally before the Tribunal which recounted his evidence in paras. 68-76 of its reasons and summarized it to this effect in para. 113:
Dr Lefkovits said that in his opinion the applicant had suffered from a temporary aggravation of a pre-existing injury which was more likely than not to have resolved somewhere between 6 weeks and 6 months after the onset of injury. His observation of x-rays and a bone scan indicated to him that there was no difference in the state of the applicant's spine radiologically between 1990 and 1992 thereby reinforcing his opinion of temporary aggravation only and there not being any permanent or lasting effects by the temporary aggravation of the pre-existing injury by the army employment.
Mr Speck, an orthopaedic surgeon, gave evidence as part of Mr Wilson's case before the Tribunal which similarly recounted it extensively in its reasons, noting (para. 65):
Mr Speck reiterated his opinion that Mr Wilson suffered a permanent and persisting aggravation of the spondylosis by his army employment. He disagreed with an opinion of Dr Lefkovits who reported on behalf of the respondent that the spondylosis was a congenital disorder which was first rendered symptomatic by playing cricket and that the
presence of pain then and during his service in the army was explained by musculo ligamentous injury only. He disagreed also with the conclusions of Dr Lefkovits that the musculo ligamentous injury was temporary in nature only. Mr Speck reaffirmed his opinion that the applicant suffered a persistent and permanent aggravation of his pre-existing spondylosis by his army employment. Similarly he dismissed the conclusions of Dr Lefkovits that spondylosis was a congenital condition.
In its conclusion under the heading "IS THE APPLICANT ENTITLED TO WEEKLY COMPENSATION?" the Tribunal devoted this paragraph to Mr Speck's evidence:
114.Mr Speck regarded the x-rays and bone scan as not being conclusive and said that there needed to have been a C/T scan performed to have offered a more definitive opinion of any alteration in the state of the applicant's spine subsequent to the applicant's employment in the army. In his opinion the applicant suffered a persistent and permanent aggravation of the pre-existing spondylosis by army employment, and dismissed the conclusions of Dr Lefkovits as to temporary aggravation, his comments as to the injury being musculo ligamentous in nature and that the spondylosis was a congenital condition. He was moved by the applicant's evidence of back pain settling following the 1990 episode and the applicant being able to undertake heavy and exertive manoeuvres within the army but which were subsequently responsible for the onset of pain. He noted also that the applicant had achieved an outstanding physical training rating shortly after enlistment which he said would be inconsistent with the applicant then having any spinal restriction.
Another orthopaedic surgeon, Mr Hadley, and Mr Wilson's treating medical practitioner, Dr James, were also called by Counsel for Mr Wilson to give evidence before the Tribunal. The evidence of both of them was extensively summarized in paras. 35-56 of the reasons but only Mr Hadley was referred to in the concluding paragraphs. At para. 115 also under the heading "IS THE APPLICANT ENTITLED TO WEEKLY COMPENSATION?", it was noted:
With respect to Mr Hadley, although I found his evidence as to the existence or otherwise of permanent injury to be unreliable, he like Mr Speck found that the applicant's employment in the army did cause a permanent aggravation of the pre-existing state of the applicant's thoraco lumbar spine.
The reference to Mr Hadley's evidence as to the existence or otherwise of permanent injury was apparently by way of anticipating the Tribunal's discussion at paras. 120-122 under the heading "HAS THE APPLICANT SUFFERED AN INJURY RESULTING IN PERMANENT IMPAIRMENT?" where it was noted that Dr Lefkovits and Mr Speck had each assessed Mr Wilson as having a whole person impairment of 5% whereas Mr Hadley had put it at 10%. In that context, the Tribunal concluded:
122.In all of the circumstances I cannot be satisfied as a probability that the applicant has a 10% whole person impairment. The applicant is therefore not entitled to compensation under s.24 and consequently is not entitled to compensation under s.27.
Comcare's first attack on the Tribunal's conclusion as to entitlement to weekly compensation centred on the finding that Mr Wilson had suffered an incapacity for work between November 1992 and May 1994. The need for that finding arose from the terms of sub-ss. 19(2) and (3) of the Act which provide:
Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a)where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
(b)where the employee is employed for 25% or less of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings;
(c)where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings;
(d)where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings;
(e)where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and
(f)where the employee is employed for 100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings.
The concept of "incapacity for work" is embodied in s. 4(9) of the Act in these terms:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
Section 4 also contains, in sub-s. (1), this definition of "suitable employment":
"suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b)in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv);
It was thus necessary for the Tribunal to determine, first, whether Mr Wilson had suffered an "injury" as defined, relevantly in para. (c) of the definition in s. 4 of the Act as:
(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;
All of the medical evidence received by the Tribunal and summarized in its reasons as recounted above was directed to that first question identified in para. 112 of its reasons. The effect of Dr Lefkovits' evidence was that any aggravation of Mr Wilson's "underlying constitutional disorder" would have lasted only a matter of months and that aggravation would not have been reflected in an incapacity to engage in work enduring beyond about January 1993 when Mr Wilson commenced his course at the William Angliss College. Mr Speck, however, expressed the opinion that Mr Wilson had suffered a "persistent and permanent aggravation of the pre-existing spondylosis". That opinion was shared by Mr Hadley.
It was open to the Tribunal to prefer the opinion evidence of Mr Speck and Mr Hadley to that of Dr Lefkovits. That it did so is a necessary inference from its extensive resumé of the conflicting opinions and its expression of the conclusion reached in para. 116 of its reasons. As explained above, it was sufficient compliance with s. 43(2B) of the AAT Act for the Tribunal to indicate the evidence on which its finding of permanent aggravation was based. I reject the contention of Mr McInnis that it was also incumbent on the Tribunal, as a matter of law, to explain why it preferred that evidence to that of Dr Lefkovits. In any event, I consider that preference to have been sufficiently explained in para. 117 of the Tribunal's reasons where it was said:
I note that whilst the applicant did wear a spinal brace for approximately 6 weeks following the episode of back pain in 1990 whilst playing cricket, on the applicant's evidence, the pain thereafter settled. Shortly after enlistment the applicant was able to engage in arduous physical training involving extensive marching, wearing a heavy pack, digging trenches, and lifting logs and jeep tyres. The applicant's back pain has persisted since the time of his employment in the army unlike the dissipation of the pain following its onset in 1990. The persistence of pain since the army cannot, I am satisfied as a probability be explained by co-incidence but is more likely than not to have its origin in the unusual and extreme exertion to which the applicant was exposed during his army employment.
From the unassailable finding that Mr Wilson had suffered a permanent aggravation of the thoraco-lumbar spine as a result of his Army employment, it followed indisputably that he was thereafter incapacitated from engaging in work at the same level, ie that of a private soldier, because he was invalided out of the Army in November 1992. It thus became necessary for the Tribunal to undertake the inquiry ordained by sub-ss. 19(2) and (3) of the Act which it properly focused on the amount which Mr Wilson had been able, in each relevant week, to earn in suitable employment.
The medical evidence was not primarily directed to the question of Mr Wilson's ability from November 1992 to undertake full-time work as a barman. Mr Speck, on the basis of an examination conducted on 8 February 1993 concluded:
I believe Mr Wilson is suitable for work where he would be able to change his posture as necessary and not have to undertake repetitive lifting, bending or extension activities. It would be inappropriate for him to return to infantry work in the Army.
The same specialist, on the basis of a further examination on 27 May 1995, although aware that Mr Wilson was then working full-time at the Crown Casino, adhered to his earlier expression of opinion as to Mr Wilson's ability to undertake work.
It was contended on behalf of Comcare that the Tribunal should have found that suitable work was available to Mr Wilson as a full-time barman for the whole period from November 1992 to May 1994 and that the only reason why he did not engage in that work for the whole of that period was his desire to pursue the course at the William Angliss College.
In this context reference was made to the evidence of Mr Gangell who had been Mr Wilson's supervisor at the York Hotel. Mr Gangell, it is true, gave evidence under cross-examination that Mr Wilson had always done the work and worked the hours required of him and basically worked at weekends to fit in with his studies. However, that evidence must be understood against the commonly accepted background that his work and hours were those of a part-time barman. Mr Gangell was not asked, and was probably not qualified, to express an opinion as to whether Mr Wilson could have worked full-time without pain or discomfort. Mr Gangell also testified that in rostering staff he had to have regard to full-time workers as well and that he became aware, in the first four months or so of Mr Wilson's employment, that he had a back problem. In that context he said:
Q.Can you just expand on that and tell us what the situation was, Mr Gangell?
A.Right, when I found out about his back problems, basically most of the stock that came into the bar was brought up by myself, because I was the only one with the keys, etcetera, and what we'd do is, I'd either go into the bar with him or the other staff, and we'd help put the stock away and basically he just had a small bit of cleaning to do as well, and dispensing of beverages.
The Tribunal summarized Mr Gangell's evidence in paras. 33 and 34 of its reasons. Evidence-in-chief of Mr Wilson directed to this question, as recorded in the transcript of the hearing before the Tribunal, included this passage:
Q.How did your back hold up to the work as a barman, 10 to 16 hours a week?
A.It was sore, like, I had to - like they offered me more but I had to, sort of, only could do - I couldn't keep going because I'd only go over for, like, four hours and that would be it. I'd just have to go home because they were pretty good. They let me work my own hours because they knew what was wrong.
Q.Did they?
A.Yes. So, they were pretty good like that. And they understood that sometimes I couldn't come in because sometimes I didn't go in for work if I had to. They'd let me go off on short notice.
Q.Did you have time off from time to time because of your back?
A.Yes, sometimes I couldn't go in and do shifts.
In my view, there was ample evidence to support the conclusion reached by the Tribunal as to whether any more remunerative suitable employment than as a part-time barman was open to Mr Wilson between November 1992 and May 1994. That conclusion was expressed in these paragraphs from the Tribunal's reasons:
118.I note that the applicant worked part time only between November 1992 and May 1994 and was also within that period of time a student at the William Angliss College. I am not satisfied that the applicant by electing to return to studies imposed upon himself the inability to undertake employment but rather the extent of the applicants capacity for employment was confined only to the part time duties he did complete as a barman at the York Hotel being work which permitted him to sit and stand at will without heavy lifting and then working relatively short hours for 3 or 4 days per week only. I am not satisfied therefore that the applicant could have undertaken that work on a full-time basis. Likewise I am not satisfied that the ability of the applicant to undertake study and the consequent physical activity involved in attending school could be translated into physical activity necessary to undertake employment. The discipline of being a student and the physical activity involved in being a student is in my opinion altogether different from that which would be required of a salaried employee.
119.Accordingly, I am satisfied that the capacity of the applicant to earn full-time salary only commenced at the date of commencement of employment with Crown Casino but then only because of the unusual nature of the work which the applicant was then fortunate enough to obtain. It would indeed be rare for persons to obtain employment where although having to stand, they could after 1 hour be given 15 minutes of rest. It is only because of that regime, in my opinion, and having regard to the medical evidence heard in these proceedings, that the applicant has been able to both commence and thereafter continue with that employment.
The evidence on which that conclusion was based, including the fact that, although he did not commence studies at the William Angliss College until February 1993, Mr Wilson did not attempt full-time work from November 1992 until that time, can be gleaned by unmistakable inference from the evidence referred
to in the Tribunal's reasons. It is equally clear that the Tribunal declined Comcare's invitation to infer that it was only Mr Wilson's pursuit of the course at the William Angliss College which precluded him from full-time employment as a barman. That was in no sense an inference which the Tribunal, as the final adjudicator of fact, was required, as a matter of law, to draw.
For these reasons, each of the attacks mounted by Comcare against the Tribunal's decision has failed. The application must be dismissed with costs.
I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.
Associate:
Date:
Counsel for the Applicant : Mr M. McInnis
Solicitors for the Applicant : Australian Government Solicitor
Counsel for the Respondent : Mr A. Moulds
Solicitors for the Respondent : Arnold, Thomas & Becker
Date of Hearing : 23 May 1997
Date of Judgment : 26 June 1997
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