Commissioner for Superannuation v Benham

[1989] FCA 111

Re: THE COMMISSIONER FOR SUPERANNUATION
And: CHERYL MAY BENHAM
No. ACT G14 of 1988
FED No. 111
Superannuation
22 FCR 413

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Beaumont(1) and Burchett(1) JJ.

CATCHWORDS

Superannuation - retirement on ground of invalidity before maximum retirement age - Pre-existing physical condition specified in benefit classification certificate - Subsequent physical condition causing, or substantially contributing to, incapacity resulting in early retirement - Whether "connected with" pre-existing condition - Whether an aggravation of another condition caused by a certified condition is "connected with" the certified condition - Beneficial construction of legislation.

Superannuation Act 1976 (Cth), s.66.

HEARING

SYDNEY

#DATE 4:4:1989

Counsel for appellant: Mrs P. Flemming Q.C. with Miss C.C. Simpson

Instructed by: Australian Government Solicitor

Counsel for respondent: Mr K.J. Crispin Q.C. with Mr I.W. Nash

Instructed by: Messrs Bernard Collaery

ORDER

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of a judge of the Court dismissing an appeal from a decision of the Administrative Appeals Tribunal. The Tribunal upheld an appeal by the respondent against a decision of the Commissioner for Superannuation to decline to pay invalidity benefits to her in accordance with s.66(1) of the Superannuation Act 1976 ("the Act").

1. Section 66(1) of the Act provides, relevantly, that, except where s.66(2) applies, an officer of the Australian Public Service who ceases to be an employee of the Commonwealth by reason of retirement on the grounds of invalidity before attaining maximum retiring age is entitled to certain benefits. Section 66(2) provides for reduced benefits to be paid where:
   

"(a) a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age;

(b) there was in force in respect of the person, immediately before the person's retirement, a benefit classification certificate; and

(c) the Commissioner is of the opinion that the incapacity which was the ground for his retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions".

1. The issue of benefit classification certificates is provided for in s.16. In substance, s.16(4) provides that the Commissioner, if he is of the opinion that a person is not likely, by reason of a physical or mental condition from which he suffers, to continue to be an employee of the Commonwealth until he attains his maximum retiring age, shall issue a benefit classification certificate to that effect, being a certificate in which the relevant condition is specified.

2. There is no real dispute between the parties as to the relevant facts. The following account of them is taken from the trial judge's reasons.

3. On 4 April 1980 the respondent was appointed as an officer of the Australian Public Service under a scheme, known as the Special Placements Scheme, which provided for the employment of persons who were disabled or otherwise disadvantaged. She took up a position in the Department of Veterans' Affairs. By reason of her appointment, the respondent became an "eligible employee" for the purposes of the Superannuation Act. On 6 February 1981 a delegate of the Commissioner, pursuant to s.16(4) of the Superannuation Act, issued in respect of the respondent a benefit classification certificate which specified a number of conditions including the physical condition "macular dystrophy". On 17 November 1983, pursuant to the provisions of s.19 of the Commonwealth Employees (Redeployment and Retirement) Act 1979, the respondent was retired from the Australian Public Service with effect from 20 July 1983. A certificate had been issued under s.14 of that Act that the respondent should be retired because she was, in consequence of physical or mental incapacity, incapable of performing her duties. At the date of her retirement she was 31 years of age. She was, thus, a person who ceased to be an eligible employee by reason of retirement on the ground of invalidity before attaining her maximum retiring age (s.62(2)(a)). The benefit classification certificate referred to above was in force immediately before the respondent's retirement, so that the requirement of s.62(2)(b) was also fulfilled.

4. On 19 December 1983 a delegate of the Commissioner determined that the respondent's entitlement was to benefits under s.66(2) of the Superannuation Act. That determination was, at the respondent's request, reviewed under s.154(4) of the Superannuation Act. The review resulted in the determination being affirmed. The respondent then sought a further review by the Tribunal.

5. The question for the Tribunal was whether the incapacity which was the ground for the respondent's retirement was caused, or was substantially contributed to, by her macular dystrophy or by a physical or mental condition or conditions connected with her macular dystrophy. If the Tribunal were of that opinion, the respondent's entitlement to invalidity benefits under the Act would be limited to benefits in accordance with s.66(2). If it were not of that opinion, the respondent's entitlement would be to the higher benefits payable in accordance with s.66(1).

6. The respondent was born in Sydney on 21 October 1951. In childhood, she was diagnosed as having the condition of con genital macular dystrophy resulting in impaired visual acuity and reading problems. It seems to have been recognized that her vision would become worse in time.

7. Notwithstanding her eye condition, she did not have much difficulty with reading while at school or university. The subjects she studied were such that not a great deal of reading was required, and what was required was able to be done in a reasonably comfortable posture. The Tribunal appears to have accepted that, prior to joining the Australian Public Service, she did not have any posture-related problems.

8. However, the work she was given after joining the public service, which included reading faint documents and small type, caused her difficulties, particularly because of the inadequate lighting that was available in the offices of the Department of Veterans' Affairs. She had referred this difficulty, about the middle of 1980, to the Special Placements Officer - an officer of the Public Service Board who was appointed for the purpose of dealing with problems of persons employed pursuant to the Special Placements Scheme - but his response was "not helpful". She had approached the Department of Social Security about mid-1980 for a specific reading aid, but found that she was not eligible for one under the social services legislation. What she had sought was a closed circuit television which displayed an enlargement of the reading matter on a vertical screen, thus avoiding the need to bend over to get close to what she was reading. Without the aid, she found it necessary to crouch very low, and often for long periods, to see the material on which she was working. Thereafter, she made further attempts to obtain reading aids, but without success.

9. It became necessary for the respondent to do a lot of reading in her employment, which she found to be embarrassing, tiring and uncomfortable, though not painful. The Tribunal accepted that the posture she habitually adopted to read was one which reduced the distance between the page (presumably resting on the desk) and her eyes to approximately 10 centimetres. She suffered discomfort and pain at the back of her neck. Later, the pain radiated to the right shoulder. In November 1982, she saw her general practitioner who gave her a certificate that she was unfit for work. She did not return to work after that, being on sick leave until the date of her retirement.

10. The Tribunal found that the respondent sought visual aids during the period 1980 to 1982, and that she was not provided with any suitable aid. It was common ground between the parties that because the respondent had been provided with no reading aids and because of her macular dystrophy, she had adopted an abnormal posture to read in her employment. It was also common ground that because she adopted such a posture, she aggravated a pre-existing condition of the cervical spine which would not otherwise have been aggravated to the extent of requiring invalidity retirement.

11. The Tribunal expressly found, and there is no challenge to this finding, that the respondent's macular dystrophy did not cause, or substantially contribute to, her incapacity.

12. But it was submitted to the Tribunal, and to the Court, on behalf of the Commissioner, that the incapacity which was the ground of the respondent's retirement was caused, or was substantially contributed to, by a physical condition connected with the condition of macular dystrophy specified in the benefit classification certificate. This submission, to be successful, required the Tribunal to find that the incapacity which was the ground of the respondent's retirement was caused, or was substantially contributed to, by the physical condition aggravated cervical spondylosis, and that that physical condition was "connected with" the condition of macular dystrophy. The Tribunal had no difficulty in making the first of those findings. It was not however, prepared to make the second.

13. The Tribunal was of the view that the decision of this Court in Commissioner for Superannuation v Miller (1985) 8 FCR 153 established that, in order to bring a case within what might be called the second limb of s.66(2)(c), the connection between the two medical conditions, i.e. that referred to in the benefit classification certificate ("the certified condition") and that which causes, or substantially contributes, to the incapacity which results in the employee's early retirement ("the associated condition") must consist of a substantial causal link.

14. The Tribunal accepted that the abnormal posture adopted by the respondent resulted in the aggravation of her cervical spondylosis. It further accepted that she would not have adopted that posture but for the fact that she suffered from macular dystrophy, a condition which normally has no relationship with cervical spondylosis. But it was of the opinion that the link between the two medical conditions fell short of the substantial causal link it thought s.62(2)(c) required. It said:
    

"The abnormal posture she adopted was not a necessary consequence of her macular dystrophy, though it was not unrelated to it. But it appears to us that that posture was the product of her working conditions and in particular the failure of the Commonwealth to provide her with adequate facilities, in recognition of her Special Placement status, to enable her to cope with her duties as they became more demanding. We see the link in this case as something more than a merely casual link but it is not a substantial causal link."

1. It was submitted to the trial judge, and on appeal, that the Tribunal erred in construing the words "connected with" in s.66(2)(c) as requiring that there be a substantial causal link between the certified condition and the associated condition which caused, or substantially contributed to, the incapacity that resulted in the employee's early retirement. It was put that Miller (supra) was not authority for that proposition and that, if it was, it was wrongly decided.

2. In Miller, the Court was constituted by Davies, Beaumont and Pincus JJ. Davies J. said (pp 154-5):
   

"In the context, it appears to me that the words 'connected with' were introduced to deal with the circumstance where the early retirement arises not from the medical condition which existed at the time the employee became an eligible employee but as a result of another medical condition that arose out of or developed from that condition. Thus, in the present case, the immediate or proximate cause of the retirement was not the employee's condition of 'hormonal mastopathy presenting as breast lumps', which had ceased to exist, but from the adhesions which had arisen as a result of the operation on the employee's breasts. In the context, I would read the words 'connected with' in ss.16(10)(b) and 66(2)(c) as dealing with the circumstance where the immediate or proximate cause of the incapacity leading to the retirement was a medical condition other than the condition existing at the time the employee became an eligible employee but where, nevertheless, there is a chain of causation such that the medical condition existing at the time when the employee became an eligible employee can be said, through a chain of events, to have caused or substantially contributed to the incapacity causing the retirement."

Pincus J. said, at p 163:

"The expression 'connected with' is not very precise. It is my view that the sort of connection which is meant is a causal one. For the purposes of s.16(10)(b) and s.66(2)(c) of the Superannuation Act 1976

(Cth), two conditions are connected with one another if there is a substantial causal link between the two. That may be so because one is a cause of the other, or because both have a common cause. It is my opinion that unless there is a substantial causal link, there is no connection. I appreciate that the word 'substantial' introduces questions of degree, but they are neither questions which need to be resolved for the purposes of this case, nor questions as to which one can usefully give any guidance. The view I have expressed on this point accords, I think, with that set out in the reasons of Davies J."

1. Although, as Pincus J. pointed out, his addition of the word "substantial" was perhaps not at odds with the views Davies J. had expressed, and both spoke in terms of a causal link, there is a significant difference between their applications of this concept to the interpretation of s.66(2)(c). For Davies J., the associated condition must have arisen out of or developed from the certified condition, so that it could be said the incapacity was caused by the certified condition. For Pincus J., it would suffice that each condition arose from some common origin, and that the incapacity was caused by the associated condition. There is a discord between these constructions of the section.

2. The third judgment is that of Beaumont J. His appears to us to be the majority view, since Davies J., while adding the comments to which reference has been made, expressed general agreement with it. Beaumont J. expressly refrained from asserting that the required connection must necessarily be causal. He said at 160:
   

"In its ordinary meaning, 'connected with' suggests a link or an association. In the present context, in my opinion, the phrase is intended to have its ordinary meaning and thus to pick up those cases where a link or an association exists between two medical conditions. That is a question of fact, to be determined in the light of the expert evidence.

It may be accepted that, in some cases, difficult questions of fact will arise for resolution in determining whether the requisite nexus between the two conditions has been established. In this respect, since the Commissioner bears the onus of proof (see Minister for Health v. Thomson (1985) 60 ALR 701 at 712), if the expert evidence available does not permit of a conclusion that the two conditions are linked or associated in a relevant medical sense, the provisions of s 16(10(b) and s 66(2)(c) will not apply. Further, a question of law, one of construction which it is presently unnecessary to resolve, could arise in some cases as to whether the nexus required by these provisions is one of causal connection or something short of that. In the present case, the requisite link or association has, in my view, been established, even if it were necessary for the Commissioner to establish a causal connection for this purpose. The respondent's hormonal mastopathy required surgery; as a result of the surgery, the prosthesis was inserted; the prosthesis caused the fibrous reaction. It follows, in my opinion, that the reaction was 'connected with' the earlier hormonal disorder for the purposes of both s 16(10)(b) and s 66(2)(c)."

1. There is no difficulty, on this view, with the word "substantial". The context demands nothing less. For s.66(2) is concerned with depriving a retired employee of a benefit paid for by a contribution proportionately equal to that made by other eligible employees. Having a certified condition, she is thought to be in a situation requiring a diminution of benefit if early retirement is caused or contributed to by that condition. So much protection the fund requires in return for her statutory eligibility. It is easy, too, to comprehend that the legislature may have considered the protection inadequate should retirement be produced by a condition not expressly mentioned in the certificate, but either arising out of it sufficiently proximately (as in Miller), or forming part of a wider condition sufficiently closely involving the certified condition (as postulated by Pincus J.). There may be other examples, but there is nothing to suggest an insubstantial connection was contemplated as the basis for depriving a retired employee of benefits. That would be unnecessary. If the connection is insubstantial, the risk of such a condition befalling the particular employee cannot have been significantly greater than in the case of employees generally. Only a necessary protection of the fund could justify taking away from the retired employee a portion of her full benefit where the incapacity does not flow from a certified condition. This is, after all, beneficial legislation to which the "established principle" mentioned by Fullagar J. in Wilson v. Wilson's Tile Works Proprietary Limited (1960) 104 CLR 328 at 335 applies, as it does in relation to a Workers' Compensation Act, that "where two constructions ... are possible that which is favourable to the (employee) should be preferred." (See also Thompson v. Armstrong and Royse Proprietary Limited (1950) 81 CLR 585 at 616; Johnston v. The Commonwealth (1982) 150 CLR 331 at 342, 343.) The construction which should be adopted, in the case of this Act, is a reading of s.66(2)(c) as referring to cases where there is a real and substantial connection between the certified condition and the condition that caused or substantially contributed to the incapacity.

2. In the present matter, the condition of cervical spondylosis is, in itself, quite unrelated to the certified condition of macular dystrophy. What is argued is that there is a connection by reason that the efforts of the respondent to cope with her work under the combined handicaps of macular dystrophy, an inappropriate type of work activity, and inappropriate lighting and conditions, led to the aggravation of the cervical spondylosis. That is the only connection contended for, and it is, of course, a causal one in nature. The Tribunal expressly rejected it as too insubstantial. If this view of the facts was open, as we think it was, the Tribunal did not err in law in making it the basis for rejecting the appellant's case.

1. The appellant assumes that an aggravation of the cervical spondylosis, to which the certified condition contributed, would be sufficient to sustain his argument. There may really be two answers to this assumption. One is that actually given by the Tribunal, that other contributions were so relatively significant as to reduce the contribution of the certified condition to a level not to be regarded as substantial. The other is that s.66(2)(c) says nothing of aggravation. In an Act dealing with pensions, this is an important omission. Aggravation has been a familiar concept in legislation of this kind for many years, as may be instanced by reference to Marshall v. Minister of Pensions (1948) 1 KB 106, where Denning J., as he then was, distinguished, in respect both of nature and effect, between aggravation and causation. See also Johnston v. The Commonwealth (supra).

2. If Parliament had intended a mere aggravation of some other condition, unrelated in itself to a certified condition, to trigger the operation of the section, wherever the aggravation could be attributed to the certified condition, it is hard to explain why language so much the common currency of this area of the law was not employed for the purpose. The fact it was not suggests a connection of that kind was seen as too remote and too exiguous to be brought within the provision. One reason why it is too remote perhaps resides in the nature of an aggravation, as distinct from a disease itself. As Menzies J. said in The Commonwealth v. Bourne (1960) 104 CLR 32 at 43, if an aggravated disease causes incapacity or death, "it is the disease at the stage of development that it has reached and not its aggravation, acceleration or recurrence that brings about incapacity or death."

3. It does not follow that once an effect of a certified condition upon an unrelated condition can be labelled an aggravation, it will always be outside the provision. In some cases, the effect may so flow from and be bound up with the certified condition itself as to require a different conclusion. But in such a case, it will generally, and perhaps always, be appropriate to reach that conclusion, if it is to be reached, under the first limb of s.66(2)(c).

4. The present appeal is really an illustration of a situation where a certified condition formed part of the circumstances out of which an incapacity arose, but was held not to have caused it, nor to have substantially contributed to it, within the meaning of the section. That finding was plainly open to the Tribunal, and is not now disputed. As Lord Wright said in Smith, Hogg and Company, Limited v. Black Sea and Baltic General Insurance Company, Limited (1940) AC 997 at 1003-1004:
   

"Indeed the question what antecedent or subsequent event is a relevant or decisive cause varies with the particular case. If tort, which may in some respects have its own rules, is put aside and the enquiry is limited to contract, the selection of the relevant cause or causes will generally vary with the nature of the contract. I say 'cause or causes' because as Lord Shaw pointed out in Leyland Shipping Co. v. Norwich Union Fire Insurance Co. (1918) A.C. 350, 369, causes may be regarded not so much as a chain, but as a network. There is always a combination of co-operating causes, out of which the law, employing its empirical or common sense view of causation, will select the one or more which it finds material for its special purpose of deciding the particular case."

1. For the purposes of s.66(2)(c), it was appropriate to discard as a cause, in the circumstances of the case, the part played by the certified condition in a web of circumstances centred upon a wholly unrelated medical condition. And it was right also to reject the proposition that the mere aggravation of that unrelated condition made it a "connected" condition within the meaning of the section.

2. The appeal should therefore be dismissed with costs.