Comcare v Smith, Graham Scott
[1996] FCA 432
•31 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 434 of 1995
GENERAL DIVISION )
ON APPEAL from a decision of the General Administrative Division of the Administrative Appeals Tribunal
BETWEEN: COMCARE
Applicant
AND: GRAHAM SCOTT SMITH
Respondent
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 31 MAY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
(1)the appeal be dismissed.
(2)the applicant pay the respondent's costs, to be taxed if not agreed.
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 ) No. NG 434 of 1995
GENERAL DIVISION )
ON APPEAL from a decision of the General Administrative Division of the Administrative Appeals Tribunal
BETWEEN: COMCARE
Applicant
AND: GRAHAM SCOTT SMITH
Respondent
CORAM: SPENDER J
PLACE: BRISBANE
DATE: 31 MAY 1996
REASONS FOR JUDGMENT
This is an appeal from the decision of the General Administrative Division of the Administrative Appeals Tribunal ('the Tribunal'), constituted by Senior Member W Purcell and Members I Way and J Campbell, given at Sydney on 12 May 1995, where the Tribunal:-
Set aside the decision under review and in substitution therefor decided that the Department of Defence was liable to pay compensation to the applicant on and from 2 August 1993;
Ordered that the respondent pay the applicant's costs and disbursements to be agreed, or failing agreement to be taxed by the Registrar or Deputy Registrar.
Section 44(1) of the Administrative Appeals Tribunal Act 1975 ('the Act') provides that:
"A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a
question of law, from any decision of the Tribunal in that proceeding. "
The applicant's notice of appeal asserts four questions of law:
(a)Whether there was any evidence to support the finding that the aggravation of reflux oesophagitis continued after 2 August 1993;
(b)Whether the Tribunal gave sufficient reasons for its decision in accordance with s. 43(2B) of the Act;
(c)Whether the Tribunal's decision was so unreasonable that no reasonable person could have decided the matter the way in which it was decided by the Tribunal;
(d)whether it was permissible for the Tribunal to have regard to the fact of earlier payments of compensation as providing evidence of a causal relationship between the respondent's condition and his employment.
The principal issues are whether there is any evidence on which the Tribunal could reach its conclusion that the aggravation of reflux oesophagitis continued after 2 August 1983, and the adequacy of the reasons given by the Tribunal for its decision.
The respondent served in the Royal Australian Army from 5 August 1980 until his discharge on 14 February 1983 on non-medical grounds of "retention not in the interests of the Army". While he was a serviceman as a gunner with the artillery, he was admitted to hospital in Townsville after he had noted blood in his vomit and was diagnosed as suffering from a Mallory-Weiss Tear, a symptom of which is oesophageal reflux. A small hiatus hernia was also found.
The respondent was examined by Dr Lamont, gastro-enterologist, on 22 and 30 April and 6 May 1982. Dr Lamont referred the respondent to Dr John Croese, gastro-enterologist, for a second opinion. Dr Croese noted in his report of 28 July 1982 that the respondent was "quite asymptomatic until February 1982, when he had an acute illness which sounded like gastroenteritis. Since then the respondent has been plagued by persistent nausea with free acid reflux and food regurgitation. He had also suffered from numerous small haematemesis". He said:
"The clinical and endoscopic diagnosis is of severe peptic oesophagitis, his symptoms are persisting despite quite vigorous medical therapy. "
Dr Croese reviewed the respondent again on 30 July 1982 and reported that the histology report on the oesophageal mucosa was "a little worrying". Dr Croese indicated that "there were definite features of reflux oesophagitis, but at one end of the fragment there is marked dysplasia".
On 18 January 1983, the respondent lodged a claim for compensation for "peptic oesophagitis". He was discharged from the Army on 14 February 1983 and on 22 March 1983 the Defence Clerk, Compensation Section, in Sydney wrote to the respondent requesting that he provide a detailed statement
setting out aspects of his employment which he considered contributed to his illness.
On 22 February 1984, the respondent submitted a statutory declaration attributing his condition to heavy workloads, the food he ate at camp, and the tension to which he was subjected by the Army. The respondent then moved to Queensland in 1985 and, it would appear, did not receive the notification for his appointment for examination by a medical practitioner in Sydney.
The respondent next approached the applicant in February 1991 and in July 1991 provided various medical reports; none of the reports address the question of a relationship between the condition and the respondent's service in the Army. The applicant on 9 October 1991 made a determination denying the respondent's claim.
On 3 November 1992 the applicant decided to revoke its determination of 9 October 1992 and determined that the applicant was liable to pay compensation in respect of temporary aggravation of reflux oesophagitis. On 17 December 1992, a determination issued awarding incapacity payments for various periods that Mr Smith had been unfit for work between 14 February 1983 and 12 July 1992 and future payments from 13 July 1992 onwards.
On 18 January 1993, Dr G L Falk, general surgeon, undertook a laparoscopic fundoplication of the respondent. Dr Falk noted on 23 March 1993 that the respondent "had a slow recovery from hiatal hernia surgery". At this time, Dr Sciacca, general practitioner, was also treating the respondent.
On 8 July 1993, a delegate of the applicant telephoned Dr Falk to discuss the respondent's claim, and noted that Dr Falk had said that he could not find any physical cause for the respondent's complaints. This advice Dr Falk later repeated. On 2 August 1993 Dr Sciacca reported that he did not believe that the respondent's present symptoms were related to his past military service.
The delegate of the applicant determined on 2 August 1993 that the applicant was no longer liable to pay compensation from that date, and on 5 November 1993, the determination was affirmed. That decision was the subject of the review by the Tribunal.
At the Tribunal, the respondent gave evidence that he was rarely symptom-free and continued to suffer symptoms which have not abated since Dr Falk's surgical intervention in January 1993. The respondent was not cross-examined and his evidence was accepted by the Tribunal.
The medical evidence in front of the Tribunal was extensive and from a number of different sources. The most recent reports were from Dr Gahan, general practitioner, who has treated the respondent since mid-1994.
The Tribunal found that the respondent developed symptoms of upper epigastric pain while serving in the Army. The Tribunal found that a diagnosis of hiatus hernia with oesophageal reflux giving rise to peptic oesophagitis, was made and that despite various medical and surgical treatments over the intervening years, many hospitalisations and many medical and diagnostic consultations and investigations, the diagnosis remained unaltered, and the respondent's symptoms persist. The Tribunal said:
"The documentary evidence discloses that it is common ground among all the medical specialists that particular foods, heavy lifting and stress may cause aggravation to the underlying condition of hiatus hernia and oesophageal reflux. They have difficulty in defining the elements which are at work in the applicant's case, nevertheless it can be said that it is clear on the history of the matter that the applicant was exposed to heavy lifting tasks and a variety of foods during his army service. While no particular factor has been definitely notated as a single causative element, the department on the basis of Dr Crows's (sic) opinion of October 1992, has accepted liability for various periods of incapacity through 1983/84 - 6 days; 1987 - 9 days; 1989 - 1 day; 1991 - 7 days; 1992 - 6 days; 1992/93 - 8 months. We are satisfied on the evidence that such acceptance was appropriate. "
The Tribunal found:
"We are satisfied on the evidence the applicant continues to suffer the symptoms of which he complains. We are satisfied on the evidence and find as a fact that the effects of the aggravation of reflux oesophagitis did not cease on or before 2 August 1993 and that the aggravation continues to incapacitate him for work from time to time. "
On the question of whether the Tribunal gave sufficient reasons for its decision in accordance with s. 43(2B) of the Act, the applicant submitted that the Tribunal failed to give any, or adequate, reasons for its findings that the aggravation continued and its "finding" that the decision of the applicant to accept liability was appropriate.
The criticism is that the Tribunal failed sufficiently to expose the reasoning which led it to those conclusions.
In Lanelle v Repatriation Commission (1982) 4 ALN N29, Northrop and Sheppard JJ said:
"A Court exercising supervisory jurisdiction over an administrative tribunal ought not likely interfere with its decisions, even if the Court feels that the Tribunal's language may have a degree of looseness. "
In Dolan v Australian and Overseas Telecommunica-tions Corporation (1993) 42 FCR 206, I noted at 218:
"Not every failure to mention a contention advanced on behalf of the party, will amount to a failure to comply with the requirements of that section. "
In Bisley Investment Corporation Limited v Australian Broadcasting Tribunal (1982) 59 FLR 132, Sheppard J said at 157:
"The section [s 43(2)] does not impose upon the Tribunal, which is often composed of members who are not trained in the law, any standard of perfection. "
His Honour emphasised his complete agreement with what was said by Fisher J in Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131. Fisher J said at 145:
"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 need the comments of Davies L.J. (as he then was) in R. v Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No. 2) [1966] 2 Q.B. 31: 'I should like to echo the words of my Lord, Lord Denning M.R., 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' [1966] 2 Q.B., at p. 50. "
The questions regarding the establishment of a causal nexus between the respondent's condition and his employment in the Royal Australian Army are associated with the questions regarding the sufficiency of evidence of continuation of symptoms, as illustrated by the submission of the applicant that the Tribunal failed to give reasons for its failure to accept the evidence of Dr Falk and accepted the evidence of the respondent. The submission that a medical witness must be preferred to a lay witness, is not sustainable.
While it was the opinion of Dr Falk that the respondent no longer suffered from any symptoms of oesophageal reflux, the respondent gave evidence that those symptoms were real and continuing. The respondent at the Tribunal hearing was not cross-examined by the applicant and the Tribunal accepted the respondent's evidence, as it was entitled to do. Dr Falk maintained in a number of reports that Mr Smith was "100% fixed" and that:
"It is my opinion that following anti-reflux surgery of the nature of which has been undertaken in yourself, you no longer have a reflux disease. This has been established by a 24 hr pH monitoring and cine barium swallow and endoscopy. The whole purpose of doing the surgery was to remove the reflux disease. This has been achieved. "
The evidence of Mr Smith contradicted this conclusion; and further, his evidence was supported by the succession of medical certificates supplied by his treating doctors to the Department of Social Security concerning his continued incapacity for work. More specifically, an endoscopy report of 21 September 1994 from the Royal Brisbane Hospital Department of Gastroenterology stated:
"There is a small sliding hiatus hernia with changes of moderate chronic reflux oesophagus extending along dystal one-third of oesophagus. "
And the summary diagnosis was "hiatus hernia oesophagitis - reflux, and duodenal ulcer chronic".
On the question of whether the aggravation by factors of his Army service continued, the medical reports do not speak with a single voice. Dr Sciacca, in a report of 2 August 1993 said:
"I do not believe his present symptoms are related to his past military service. "
However, Dr Croese in a report of 19 October 1992 said:
"The history suggests that he developed symptoms of reflux oesophagitis while serving in the Army. Mr Smith identifies a number of situations which have aggravated this condition. The factors include spiced or large meals, heavy lifting and stress. It is his claim that these provocative factors were a consequence of his employment. Various submissions documented in the correspondence provided to me, suggest that these 'provocative situations' were not an inevitable consequence of military service. I am not in a position to argue one way or the other. The circumstances identified though undoubtedly aggravated his reflux oesophagitis. "
Dr Croese, to whom Mr Smith had been referred in 1982, is a consultant physician in gastroenterology and earlier in the report of 19 October 1992 said:
"Prior investigations clearly establish that he has had reflux oesophagitis and he contends, reasonably, that heavy lifting, emotional stress and diet contributed to this disease. "
[emphasis added]
There was thus material on which the Tribunal could conclude that his Army service aggravated his reflux oesophagitis. On the question of whether that aggravation was ongoing, Dr Croese said:
"The factors identified probably (undoubtedly) aggravated the reflux oesophagitis. I would not expect them though to result in permanent damage. It is more likely that they caused a temporary aggravation. Reflux oesophagitis does not always settle down when aggravating factors are removed. This reflects the underlying basis for the disease, an incompetent lower oesophageal sphincter. "
The opinion that a "temporary aggravation was more likely" acknowledges the possibility of permanent aggravation.
In my view there is no substance in the contention on behalf of the applicant that the Tribunal failed to provide adequate reasons for its declining to accept the evidence of Dr Falk. The Tribunal referred specifically to the oral evidence of Mr Smith, and to the choice not to cross-examine him. The Tribunal were entitled, as they did, to accept the evidence. Moreover, the Tribunal contrasted the evidence of the applicant with the view of Dr Falk, and the Tribunal referred to the corroboration of his account afforded by the medical certificates which treating doctors have supplied to the Department of Social Security concerning Mr Smith's incapacity for work. The specific reference to the endoscopy report of 21 September 1994 by the Tribunal (which is quite inconsistent with Dr Falk's conclusion) is further corroboration of the evidence of the applicant as to the continued suffering of the symptoms of oesophagitis reflux.
The applicant submitted that:
"The Tribunal wrongly relied on the earlier payments of compensation as constituting evidence of a causal relationship between his condition and his employment. "
In my opinion, this submission mis-states what the Tribunal in fact did. The Tribunal, in the part of its reasons earlier set out said that "no particular factor has been definitely notated as a single causative element". It referred to the fact that the Department, on the basis of Dr Croese's opinion of October 1992 had accepted the liability for various periods of incapacity through "1983-84 - 6 days; 1987 - 9 days; 1989 - 1 day; 1991 - 7 days; 1992 - 6 days; 1992-93 - 8 months". The Tribunal then said:
"We are satisfied on the evidence that such acceptance was appropriate. "
This sentence indicates the Tribunal's concurrence with the view that the Department was liable to pay compensation in respect of those periods. It does not, in my opinion, indicate that the Tribunal relied on that depart-mental view as establishing liability.
In addition to the lengthy report of Dr Croese of 19 October 1992, there was his earlier report of 4 August 1992 in which he said:
"In response to your most recent correspondence (July 27th 1992), I would offer the following opinions. Reflux oesophagitis is likely to be worsened by certain diets, lifting heavy weights and stress. I note that Graham Smith identifies these features as contributing to his symptoms. It seems a reasonable association for him to make.
The basic problem that results in reflux oesophagitis is a diminished function of the lower oesophageal sphincter. I am not sure if any specific incident or event can be identified that would have resulted in damage to this man's sphincter. Having said that, reflux oesophagitis and symptoms develop in response to certain provocative situations. These include foods which are spiced or contain a high fat content, heavy lifting and emotional stress. "
In this case, the evidence extracted by the Tribunal supports and explains the conclusions which it reached in its decision.
Concerning the question of whether there was any evidence to support the finding that the aggravation of reflux oesophagitis continued after 2 August 1993, the applicant stated in its amended notice of appeal that:
"(a) The Tribunal based its decision that liability continued, on evidence of continuation of symptoms but did not address the real question, namely, whether the symptoms were attributable to the underlying condition or to an aggravation of that condition sustained during the Respondent's service with the Army.
(b)The question whether the aggravation continued was one which required expert opinion evidence and there was no evidence of such a nature to establish that the aggravation continued.
(c)The Tribunal came to a decision to which no reasonable person could have come, namely that an underlying condition not caused by the Respondent's service with the Army, was aggravated during his time of service with the Army (which ceased in 1983) and that the effects of the aggravation (as distinct from the underlying condition) could have continued to be suffered from August 1993 to May 1995 and continuing. "
As to what is referred to in the paragraph (a) as "the real question", the Tribunal expressly referred to the Departmental submission prior to making its findings. The Tribunal noted:
"The Department submits in effect that there is no connection between the applicant's current condition and the exacerbation he suffered during his Army service. "
What was required to be proven pursuant to s 14 of the Safety, Rehabilitation, Compensation Act 1988 was that there was an injury suffered by an employee and that that injury resulted in incapacity for work or impairment. "Injury" is defined (in part) in s4 in that Act as:
"a disease suffered by an employee";
and "disease" is defined as meaning:
"(a) any ailment suffered by the employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation. "
Therefore, what has been proven is that there has been aggravation of an injury to the respondent due to his employment in the service of the Australian Army.
In my opinion, the Tribunal in fact addressed the real question because it said:
"We are satisfied on the evidence and find as a fact that the effects of the aggravation of reflux oesophagitis did not cease on or before 2 August 1993 and that the aggravation continues to incapacitate him for work from time to time. "
The Tribunal, it is true, had regard to the fact that Mr Smith's symptoms persist. This was an important finding because it had been submitted by the Department, based on Dr Falk's reports, that Mr Smith "has no current disability". The Tribunal found, as on the evidence it was entitled to, that he did have a current disability and it expressly found that "the effects of the aggravation of reflux oesophagitis...continues to incapacitate Mr Smith for work from time to time".
While there was expert evidence that it was "more likely" that factors to which Mr Smith was exposed during his Army service caused a temporary aggravation of the reflux oesophagus, as earlier noted, Dr Croese in his lengthy report of 19 October 1992 said:
"Reflux oesophagitis does not always settle down when aggravating factors are removed. This reflects the underlying basis for the disease and incompetent lower oesophageal sphincter. "
A report of 14 February 1985 from the Medical Services Headquarters of the Australian Army to the Regional Secretary of the Regional Industrial Compensation Section of the Army wrote concerning Mr Smith:
"...
a.The 'disease' in question is unclear. It would appear that the ex-member has been told that he has peptic oesophagitis which may arise from many underlying conditions.
b.The ex-member may well have had to lift very heavy loads for certain periods, but it would appear that D-Arty could give details of this. Sometimes such activity may lead to a condition, hiatus hernia, which gives rise to symptoms of oesophagitis. However this diagnosis has not been mentioned. "
Further, a minute of the Casualty Department of Defence of 20 September 1991 said:
"Mr Smith did have a small hiatus hernia (Specialist Report Dr Croesa [sic] dated 28 Jul 82) which may have been aggravated by lifting as stated in the original claim but not aggravated by stress or diet. "
A basis in the evidence therefore exists for the Tribunal to conclude as it did.
It is not a function of this Court to form its own view as to the sufficiency of the nexus between the stated causes and the consequent condition and disease suffered by the respondent. There was evidence on which the Tribunal could reach the conclusions which it did.
The appeal should be dismissed with costs.
I certify that this and the preceding sixteen (16) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 31 May 1996
Counsel for the applicant : Mr P Hack
instructed by : Australian Government Solicitor
Counsel for the respondent : Mr M D O'Gorman
instructed by : Gilshenan & Luton
Date of Hearing : 6 March 1996
0
2
0