VETERANS’ AFFAIRS – member of Royal Australian Navy has acoustic neuroma (a benign tumour) surgically removed from right ear at expense of Commonwealth – no causal or temporal connection between the tumour and member’s employment – prior to operation, useful hearing in right ear – following operation no hearing in right ear – whether entitlement to compensation under subs 14(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of loss of hearing – whether loss of hearing resulted from an “injury” “suffered” by member as an “unintended consequence” of “medical treatment” paid for by Commonwealth within subs 6A(2) of that Act – meaning of “unintended” – absence of full findings of fact to which law could be applied.
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER DR J D CAMPBELL
BETWEEN:
COMCARE APPLICANT
AND:
DAVID HOUGHTON RESPONDENT
JUDGE:
LINDGREN J
DATE OF ORDER:
14 APRIL 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal in proceeding N2000/1793 given on 15 October 2002 be set aside.
2. The matter be remitted to the Tribunal to be determined according to law.
3.The respondent have a certificate under subs 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
THE COURT NOTES THAT:
1. There is no order for costs as between the parties to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1175 OF 2002
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MEMBER DR J D CAMPBELL
BETWEEN:
COMCARE APPLICANT
AND:
DAVID HOUGHTON RESPONDENT
JUDGE:
LINDGREN J
DATE:
14 APRIL 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Comcare”) appeals to the Court under…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Comcare v Houghton [2003] FCA 332
Case
[2003] FCA 332
Decision Date
CaseChat Overview and Summary
The Federal Court of Australia dealt with the case of Comcare v Houghton, wherein the primary dispute revolved around the interpretation of the term “unintended consequence” as it appears in section 6A(2)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The central issue in this case was whether the loss of hearing experienced by Mr Houghton, a former member of the Royal Australian Navy, was an unintended consequence of his medical treatment. Mr Houghton had undergone surgery to remove an acoustic neuroma, a benign tumour in his right ear, which resulted in the complete loss of hearing in that ear. The court's task was to determine whether this loss of hearing constituted an unintended consequence under the terms of the Act, given the high probability of such an outcome being associated with the surgery.
The court delved into the medical evidence and the nature of the surgery performed on Mr Houghton. The tribunal had concluded that the hearing loss was not an unintended consequence, a decision that Comcare sought to overturn. The court found that the tribunal's decision lacked specific factual findings necessary to properly address the legal issue at hand. It was noted that without these findings, any discussion on the meaning of “unintended consequence” would be speculative and not grounded in the actual circumstances of Mr Houghton's case. The court, therefore, held that the tribunal's decision should be set aside and the matter remitted back to the tribunal for proper consideration in accordance with the law.
In its reasoning, the court emphasised the importance of factual findings in resolving legal disputes and highlighted the unsatisfactory nature of the statutory provision that lacked clear guidance. The court also declined to make a costs order between the parties but granted Mr Houghton a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) for the costs he incurred in relation to the appeal. The court's final order was to set aside the tribunal's decision and remit the matter back for further consideration, with no costs order between the parties but with a certificate for Mr Houghton's appeal costs.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal in proceeding N2000/1793 given on 15 October 2002 be set aside.
2. The matter be remitted to the Tribunal to be determined according to law.
3. The respondent have a certificate under subs 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
THE COURT NOTES THAT:
1. There is no order for costs as between the parties to the appeal.
Background
Background to the litigation
At the heart of the Tribunal’s decision was its construction of the expression “unintended consequence” in par 6A(2)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).BACKGROUND FACTS The following account of the background facts is taken from the Tribunal’s Reasons for Decision. Mr Houghton joined the Royal Australian Navy on 25 June 1984. Apparently, he had suffered some degree of right ear hearing deficiency since childhood. When enlisting, Mr Houghton underwent a medical examination. It was recorded that he was suffering from some high frequency sensory neural hearing loss. In 1996/97, he was recorded as stating that he had become aware of a worsening of his right ear hearing deficiency. On 22 February 1999 Mr Houghton was referred to Dr Benedict Panizza, an ear, nose and throat surgeon. He was diagnosed as having a right intracanalicular acoustic neuroma (a histologically benign tumour). There was no evidence that this tumour was related to Mr Houghton’s employment. It was removed on 8 March 1999 by way of a “sub-occipital craniotomy” by Dr Panizza and Dr Michael Redmond, neurosurgeon. Prior to the surgery, Mr Houghton already suffered from a 19.4% hearing loss in the right ear. As a result of the surgery he lost his remaining hearing in the right ear (referred to in documents in evidence as “81.6%” [sic]). Following the surgery, Dr Redmond recorded of Mr Houghton that “he had lost hearing in the right ear which was not unexpected”. Dr Panizza recorded that Mr Houghton had “essentially, a dead ear on the right side as a result of having his acoustic neuroma removed”. Before the Tribunal there was no disagreement as to the facts. There was always a high degree of probability that surgical removal of the acoustic neuroma would entail a total loss of hearing in the right ear. In a consultant’s report dated 2 February 1999, Dr Redmond had commented as follows:“He has useful hearing right ear. I have suggested surgery with attempted hearing preservation. I have outlined the nature of surgery, including the risks – death, stroke, nerve injury VII, VIII, epilepsy, infection, CSF leak, meningitis and anaesthetic risk.”Perhaps the hearing loss was caused by “nerve injury VII, VIII”. In the absence of evidence on the matter, I can only surmise. Dr Joseph Scoppa, a consultant ear, nose and throat surgeon and medico-legal consultant, provided a report dated 7 August 2001 in which he recorded that Mr Houghton told him that Dr Panizza had told him (Mr Houghton) prior to the surgery that, because the tumour was small, there was a choice between two surgical approaches, namely:(a)to reach the tumour by going through the inner ear, which would certainly result in total and permanent hearing loss;(b)to reach the tumour by going behind the ear so as to maximise the chance of hearing preservation.According to Dr Scoppa, Mr Houghton said that Dr Panizza had added that either approach “would probably result in total hearing loss”, but that there was a “slim chance of hearing preservation with the post-auricular approach”. Mr Houghton told Dr Scoppa that he had “opted for the behind-the-ear surgical approach in order to give himself some chance of hearing preservation”. Dr Scoppa offered the following opinion: “The surgical approach used on 8/3/99 was a suboccipital approach. This approach is commonly used when a patient with an acoustic neuroma has hearing that is worthwhile preserving. This would have been the case in Mr Houghton’s situation because his pre-operative hearing loss was only 19.4%. The probability of hearing preservation in acoustic neuroma surgery is poor, and most patients who undergo this type of surgery usually lose hearing irrespective of surgical approach used. There are numerous articles in the medical literature on so-called hearing preservation surgery for acoustic neuroma removal. I attach a representative article on acoustic neuroma surgery by Scrivenor and Segelov [BP Scrivener and JN Segelov, “Acoustic Neuroma”, The Medical Journal of Australia, vol 155, December 2/16, 1991 at pp 752–754]. I draw your attention to the following relevant paragraphs on page 753 of their article:‘The prime purpose of surgery in acoustic neuroma is the total removal of the tumour, while preservation of facial nerve function is next in importance. Preservation of hearing, usually possible only in very small tumours, represents the ultimate in achievement, but must be regarded as ‘cream on the cake’ rather than a routine target.A small series of six patients was treated by a middle fossa approach, the aim being to preserve hearing in patients with a small tumour. The average tumour size in this group was only 1.2 cm but while there was no mortality or serious morbidity, facial nerve preservation still rested at the 50% mark and hearing preservation was not possible.’It is clear therefore that it is the intention of the operating surgeon or surgeons to try and preserve any serviceable hearing that may be present pre-operatively in acoustic neuroma surgery by appropriate selection of the operative approach, but that this intention is rarely able to be achieved. Thus Dr Redmond is correct in stating in his report of 30 June 2000 that Mr Houghton’s post-operative hearing loss ‘was not unexpected’, however the intention at surgery was to try and preserve the 81.6% hearing that Mr Houghton had prior to surgery, as evidenced by the approach used and by Mr Houghton’s pre-operative discussion with Dr Panizza. It is further patently obvious that it was intended to preserve hearing at the time of surgery when one notes Dr Redmond’s handwritten consultation report of 1/2/99 where he states:‘He has useful hearing in the right ear. I have suggested surgery with attempted hearing preservation’....His hearing loss in the right ear is due to a combination of pre-operative and intra-operative loss of hearing. It was the intention of the operating surgeons to preserve hearing at surgery, but as it usual in such cases this proved to be unachievable.” (my emphasis)
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
LINDGREN J
In the absence of relevant factual findings I refrain from discussing further the meaning of “unintended” or “unintended consequence” in subs 6A(2). To do so is not necessary for the resolution of this appeal. It would be improper to attempt to give a free-floating definition of, or synonym for, the word or expression. The discussion would take place in a factual vacuum and would constitute the giving of judicial advice without any factual substratum and in relation to assumed facts: cf Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355–357; Director of Fisheries (Northern Territory) v Arnhem Land Aboriginal Land Trust (2001) 185 ALR 649; Harts Australia Ltd v Commissioner of Taxation (2001) 109 FCR 405 at 413; Kockums AB v Commonwealth of Australia [2002] FCAFC 138; and the cases cited in Copyright Agency Ltd v Charles Sturt University (No 2) (2001) 113 FCR 369 at [46]–[54].CONCLUSION For the above reasons the decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal to be determined in accordance with law. The proceeding had the potential to raise legal issues of general importance. From the viewpoint of clarification of the law, it is unfortunate that the lack of factual findings makes it presently impossible to resolve those questions. The attention of those responsible should be drawn to the unsatisfactory nature of subs 6A(2). Difficult questions touching its construction are bound to continue to arise. My reasoning differs somewhat from Comcare’s submissions. There should be no order as to costs as between the parties. Mr Houghton applies for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth). A certificate under subs 6(1) of that Act should be granted to him in respect of the costs incurred by him in relation to the appeal.