Commonwealth Banking Corporation v Percival, R.W

[1988] FCA 486

JUDGMENT No. !k$b.X..,%m

CATCHWORDS

ADMINISTRATIVE APPEALS TRIBUNAL - appeal from decision setting
aside determination of Commissioner for Employee's
Compensation - whether stress at work aggravated the
respondent's coronary artery disease - whether Commonwealth v.
Beattie correctly decided - the distinction between the
pathology and symptoms of a disease - the basis on which a
decision of the Administrative Appeals Tribunal may be set
aside - the function of the Court - whether the respondent

suffered from a compensable incapacity.

Compensation (Commonwealth Government Employees) Act 1971

7Cth) - 66.26, 29	Administrative Appeals Tribunal Act 1975 (Cth) - ss.43.44
commonwealth v. Beattie (1981) 53 F.L.R. 191
Federal Broom Company Pty Limited v. Semlitch (1964) 110
C.L.R. 626
Canberra Abattoir Pty Limited v. Asioty (ACT G18 of 1987,
delivered 26 April 1988)
Waterford v. The Commonwealth (1987) 71 A.L.R. 673
Repatriation Commission v. Moss (1982) 40 A.L.R. 553
COMMONWEALTH BANKING CORPORATION V. RAYMOND WILLIAM PERCIVAL NO. NSW G448 of 1987
Davies, Sheppard and Ryan JJ
14 July 1988
Canberra
IN THE FEDERAL COURT	OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. G448 of 1987

1

GENERAL DIVISION 1

ON APPEAL from the General
Administrative Division of the

Admlnistrative Appeals Tribunal

BETWEEN: COMMONWEALTH BANKING

CORPORATION

(Appellant)

- AND RAYMOND WILLIAM PERCIVAL

(Respondent)

Coram: Davies, Sheppard and Ryan JJ

-	Date: 14 July 1988
Place: Canberra

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.	The appeal be allowed.
2 .	The decision under appeal be set aside and
the matter be remitted to the
Administrative Appeals Tribunal to be heard
and decided again with or without the hearing of further evidence.
3 .	Leave is granted to apply with respect to costs.
-	NOTE :
with in Order 36 of the Federal Court
Settlement and entry of orders is dealt
Rules.
IN THE FEDERAL COURT	OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G448 of 1987
1
GENERAL DIVISION	)

ON APPEAL from the General
Administrative Division of the

Admlnlstrative Appeals Tribunal

BETWEEN:  COMMONWEALTH BANKING
CORPORATION

(Appellant)

AND RAYMOND WILLIAM PERCIVAL

-

(Respondent)

Coram:	Davies, Sheppard and Ryan JJ
Date:	14 July 1988
-

Place: Canberra

REASONS FOR JUDGMENT

THE COURT: This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 18

August 1987 which set aside a determination of a delegate of

the Commissioner for Employees' Compensation made on 23

December 1985 and remitted the matter to the Commissioner

with the direction that compensation be granted.

The respondent, Raymond William Percival, was an

employee of the applicant, Commonwealth Banking Corporation ("the Bank"), and in 1978 suffered a myocardia1 infarctlon at home. In 1977 he had another infarction followed by a by-pass operation. In 1982 the by-pass became blocked and

the appellant was absent from work for some time. He

- z -

returned to work later In 1982 and retired on the ground of
ill-health in 1984.

The medlcal evidence before the Tribunal was conflicting. The vlew of DC P. Fletcher, a medical witness called on behalf of the Bank, as recited by the Tribunal was that:-

"... I would not expect, for someone who has had three	heart attacks and heart failure, that his underlying
cardiac condition will be changed by retirement. The amount of the symptoms he gets may well be improved, because he will be resting more, and less stressed, in the broadest sense of the word, but I do not think the underlying cardiac condition, which is what determines his prognosis, is changed by retirement".

The Tribunal, after quoting the passage; went on to say:-

"DC Fletcher was . . . of the view that the stresses	had no part in the development of the underlying
pathology of the respondent's coronary artery
disease. "

The Tribunal then noted:-

"DK Fletcher's view was not shared by the

respondent's doctors. DC Haneman thought that the real question was whether the stresses of work had damaged the arteries and instigated the

by-pa s s . "

and referred, amongst other evidence, to that of DC E.

Schiller, of which the Tribunal said:-

"DC Schiller thought that the respondent's work as

a bank manager lnteracting with his behavlour and
personality contributed to the development of the
coronary heart disease and the various episodes
of the disease between 1973 and his retirement in
1984. The anxiety and apprehension after the two
bank hold-ups probably contrlbuted to the
progression of his disease. The respondent's
heart condition restricted him to sedentary or
light work; he would be advised against

. . . .

- 3 -

undertaking work involving time pressures,

deadlines, heavy responsibllities and large work
loads and he could not go back to his previous

work."

After reviewing the medical and other relevant evidence

the Tribunal said in paragraph 14:-

"Considering all the medical evidence we are not

satisfied that he basic pathology of the

respondent's coronary artery disease was

aggravated or accelerated by stress at work.
However as to stress bringing on the symptoms Dr

Fletcher said:-

'Now, what I am asking you, is given the

fact that the applicant's (sic) heart was

- as we do not know it was until you have

seen these documents - do you think that

going back to work between ' 8 2 and '84

would have aggravated the symptoms o as

to make it difficult for him to conduct	-
to do his normal work as a bank manager
of a fairly small	branch?---It seems from

all the evidence that has been presented

that it probably did.'

We accept stress at work brought on symptoms at

the time. We so find."

Thus, the controversy as to whether the "basic

pathology" of the respondent's coronary artery disease had

been aggravated or accelerated by stress at work was resolved

by the Tribunal adversely to Mr Percival. However, the

Tribunal regarded the symptoms of the disease as something

distinct from and additional to the "basic pathology" thereof
and went on to find that stress at work brought on symptoms

at the time.

The Tribunal quoted the following passage from the

joint judgment of Evatt and Sheppard	JJ in Commonwealth v
Beattie (1981) 53 F.L.R.	191 at 201:-

"It does not follow In every case that a worker with a pre-existing in~ury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existlng injury. The evldence earller recounted shows this to be a very different type

of case. Thus each case must depend upon its own

facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place. "

The Tribunal then said:-

"We accept on these facts that the aggravation of

the symptoms was a factor which led to the

respondent's being retired thereby causlng

incapacity to work. We so find."

The Tribunal next proceeded to consider whether total or partial incapacity for work resulted from the aggravation of the symptoms at the time of work. In the light of all the evidence on the question of capacity, the Tribunal concluded that:-

"On no view of these facts can the respondent be regarded as being able to do his former job as branch manager at Kogarah Bay; he is therefore

partially incapacitated."

It was then necessary to consider whether Mr Percival should be deemed to be totally incapacitated for work under s . 2 6 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth)("the Act"), which was in force at the date of his

retirement but has since been repealed. After reviewlng the
evidence relevant to that issue the Tribunal concluded:-

"We have referred to the regular inspectlon

reports (paragraph 17 above). They are	also
relevant as indicating that the respondent	was an
excellent,	well motivated bank officer. That

fact is, we think, relevant together with DC Haneman's evidence, which we accept in preference

to that of DC Kendall, to establish that the

respondent is fitted only for employment of a kind that is not commonly available and

employment of that kind is not reasonably

available to him. Accordingly we deem the

respondent totally incapacitated pursuant to the

provisions of section 2 6 of the Act."

The Tribunal determined that the matter should be

remitted to the Commissioner with the following directions:-

"l. that the respondent suffered a recurrence of

his angina to which his employment was a

contributing factor;

2 . the applicant is partially incapacitated

thereby and deemed totally incapacitated under

section 2 6 of the Act;

3 . the applicant is therefore ntitled to

compensation for total incapacity under section 4 5 of the Act and to medical expenses under section 37 of the Act;"

By an amendment to its notlce of appeal made by leave

during the course of the hearing, the Bank has identified the

following questions of law as arising from the Tribunal's

decision:-

"1. Whether the findings made by the Tribunal are

capable, as a matter of law, of supporting a
conclusion that incapacity of the Respondent
to work resulted from aggravation
acceleration or recurrence of the
Respondent's coronary artery disease
contrlbuted to by the Respondent's
employment.

2 .   Whether the Tribunal erred in law in paragraph 14 in holding that, because stress at work brought on symptoms of the Respondent's coronary artery disease at the

time of the stress but without making any

finding that those symptoms continued after
cessation of the stress, the Respondent's
incapacity to work was caused by that
brlnging on of symptoms or by 'the
aggravation of the symptoms' in those
circumstances.

3 . Whether Commonwealth of Australia v. Beattie 53 FLR 191 is correctly decided."

Question 3. turns its attention to the findlng of the

Tribunal that Hr Percival's work with the Bank brought on, at

the time, symptoms of the disease from	which he suffered and
thereby aggravated the disease.	It was submitted by Mr A.

Emmett P.C., with whom MC P. Arden appeared for the

applicant, that Commonwealth of Australia v. Beattie (1981)

53 F . L . R .	191 had been wrongly decided and that the disease
of which	s.29 speaks is constituted by its underlying

pathological condition and not by the symptoms thereof. This was a brave submission made without reference to any medical evidence suggestlng that symptoms of a disease do not form

part of a disease and also without reference to the

definition of "disease" in s.5(1) of the Act which provides:

"'diseasep includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;"

NO doubt, for many medical purposes, it is useful and

often necessary to distinguish between the underlying

pathology of a disease and mere symptoms of the disease. For

some legal purposes, eg. s.104(2) of the Act, the distinction

is also pertinent. See	Johnston v. Commonwealth (1982) 150
C.L.R. 331 at pp.341-3. But that	is not to say that the

symptoms of a disease are not a part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of

which compensation for incapacity 1s granted. Pain 1s

probably the most common symptom of injury o disease. It is

equally the most common factor leading to compensable

incapacity.

If authority be needed, it 1s found in Federal Broom

Company Pty Limited	v. Semlitch (1964) 110 C.L.R. 626 in
which McTiernan, Kitto, Taylor, Windeyer and Owen	JJ. held

that the word "disease" in the Workers' Compensation Act
1926-1960 (NSW) included a functional or mental illness and

that, in respect of such a disease, the underlying illness

was not separable from its symptoms. At	p.634,	Ritto J.,
with whom Taylor J. agreed, said:-

"Once it was established, as it was established beyond

question before the Commission by the evidence	of the
psychiatrists who were called, that the incident	of
1st December 1960 acted upon	a pre-existing condition

of mental illness (a disease) to produce a delusion

causing incapacity for work, the respondent had made	a
clear case of exacerbation	of her mental disease,

according to the ordinary meaning of the word.

loffitt S. was right, I think, in saying: "There is an

exacerbation of a disease where the experience	of the
disease by the patient is increased	or intensified by

an increase or intensifying of symptoms."

That reasoning was applied by Evatt and Sheppard JJ. in

Beattie's case, cited above, at p.201. Their Honours said:-

"For present purposes it is enough to say that pain

brought on by work activity may constitute an

aggravation of a pre-existing injury, even though no

pathological change takes place."

This decision was recently applied by Gallop, Sheppard

and Neaves JJ. in Canberra Abattoir Pty Limited v. Asioty

(ACT G18 of 1987, delivered 26 April 1988). Their Honours

there considered a case where the worker's dlsease was

quiescent but was likely to flare up if he returned to work.

Their Honours said:-

"A return of the symptoms of the disease if Mr Asioty

resumed certain types of work could amount to a

further aggravation or recurrence of the pre-exlsting

disease, but the likelihood of a return of the

symptoms could not be described as an aggravation or recurrence within the meaning of the definition of 'disease'. "

Those decisions treated the symptoms of a disease as part of the disease. With that view we entirely agree. The relevant distinction is not that which MC Emmett sought to draw but rather the distinction between the sequelae of a disease which are not a part of the disease and the sequelae

thereof which are a part of the disease.	That distinction
was considered, for instance, in	Australian

Telecommunications Commission v. Tzikas (1985) 5 A.A.R. 173.
Cases in which single judges of the Court have considered
like problems are O'Neill v. Commonwealth Banking Corporation
(pld G199 of 1986, Pincus J., delivered 9 July 1987) and

Westgate v. Australian Telecommunications Commission (NSW

G257 of 1987, Davles J., delivered 23 December 1987).

In its Consideration of Mr Percival's condition to the

stage of his retirement, the view taken by the Tribunal was

well supported by the evidence before it and we have no

reason to doubt its correctness.	The Tribunal correctly
applied the principles enunciated in	Beattie's case. The
Tribunal accepted the evidence	of DC Fletcher that the basic

pathology of Mr Percival's coronary artery disease was not
aggravated or accelerated by stress at work but that his work

with the Bank would have aggravated the	symptoms of the
disease and that the aggravation of the symptoms	was a factor
leading to Mr Percival's retirement.

Rather than placing undue reliance upon remarks in

Beattie's case and drawing incorrect inferences therefrom, which it did not do, the Tribunal may in fact not have given due weight to the concept enunciated in Beattie's case when turning its attention to the next stage of its consideration, that is to the situation after retirement. This is because the Tribunal adopted Dr Fletcher's evidence, which was that the underlying pathology of MC Percival's condition was not aggravated or accelerated by his employment. We merely note

that Dr Fletcher's evidence that stress was unlikely to have

contributed materially to Mr Percival's arteriosclerosis or

its deterioration, did not necessarily lead to a concluslon

that the stress and high blood pressure from which Mr

Percival had suffered over a number of years had not brought

about an overall condition which was too complex to be

described by a reference simply to the underlying vascular

pathology.
The Tribunal re~ected the view that MC Percival's employment had contributed to	his post-retlrement condition.
It rejected this by reference to Dr	Fletcher's evidence and

after consideration of all the evidence of the case.

Notwithstanding our comments above, the Tribunal was entitled to come to that view on the evidence before it.

Mr B.J. Gross Q.C., with whom M r A.R. Cooley appeared

for Mr Percival, submitted that the Tribunal had found as	a
fact that Mr	Percival's employment with the Bank contributed

to his post-retirement condition. But he Tribunal's

reasoning is inconsistent wlth thls, as 1s the form of the

Tribunal's order remitting the matter to the Commissioner for
Employees' Compensation for reconsideration. The whole of
the Tribunal's reasoning makes it clear that the Tribunal
came to the view that Mr Percival's stresses and pressures at
work led to increased hypertension when he was at work and

that that hypertension and the strain from which he was

suffering brought about his retirement. The Tribunal

referred to Dr Fletcher's evidence as follows:-

"Dr Fletcher saw no point in examining the respondent

he did comment that since retirement that the amount

of the symptoms that he respondent got after

retirement may well have improved because he would be
resting well and less stressed in the broadest sense
of the word, but did not think the underlying cardiac
condition, whlch was what determined his prognosls,

was changed by retlrement."

The Tribunal then concluded:

"On no view of these facts can the respondent be

regarded as being able to do his former job as branch

manager at Kogarah Bay; he is therefore partially

incapacitated."

It was on that basis that the Tribunal found that Mr Percival

had a compensable incapacity and not on the basis that M r

Percival's employment had contributed to the post-retlrement

condition of his dlsease.

Mr Gross submitted, nevertheless, that there was

material before the Tribunal from Dr Schiller and other

medical practltioners whlch, if accepted, would have

supported the conclusion that MC Percival's employment with the Bank had contributed to his post-retlrement condition. Clearly, there was such evidence and it would have been

reasonably open to the Tribunal so to find. We need not

discuss the details of that evidence.

Mr Gross submitted that a decision of the Tribunal

could be set aside only if there were no evidence which would

have supported the decision to which the Tribunal came.
However, this submission involves an impermissible extension
of a different point, namely that, insofar as brief reasons

for a decision do not express an error of law, then, if there

is evidence to support the decision or the reasons given, so

that no error of law can be inferred or otherwise identified,

an attack upon the decision must fail. See, eg, the

discussion respecting reasons for	decision in Public Servlce
Board of N.S.W. v.	Osmond (1986) 159 C.L.R. 656, Pettit v.
Dunkley [l9711 1 N.S.W.L.R.	376 and Housing Commission of New

South Wales v. Tatmar Pastoral CO Pty Ltd 6 Anor [l9831 3

N.S.W.L.R. 370.

The Administrative Appeals Trlbunal is, however,

required by s.43 of the Administratlve Appeals Tribunal Act

1975 (Cth), when giving its decision, to state the reasons

for it, to set out its findings of fact and to make reference to the evidence upon which those facts were found. That is an obligatlon which the Tribunal undertook in the present

case and its reasons are lengthy, careful and detailed. Such

reasons ought not to be examined with an unduly critical or

technical eye but should be read fairly wlth each sentence
being weighed up and considered rn the context of the whole.

If, on the reading of such reasons, an error of law appears, erther by express statement or by necessary implication and if that error of law affected the decision reached, then the decision must be set aside. If a material error of law is so identified, it is of no consequence that the decision reached could have been supported on a different basis, that there was evidence, which, if accepted, would have justified the ultimate decision.

This Court is bound by the facts as found by the

Tribunal. Under s . 4 4 of the Administrative Appeals Tribunal - Act, an appeal to this Court is on a point of law only. Such a point must be considered on the facts determined by the Tribunal. The function of the Court was enunciated by Brennan J. in Waterford v. The Commonwealth (1987) 7 1 A.L.R.

673 at 689 as follows:-

"A finding by the AAT on a matter of fact cannot be

reviewed on appeal unless the finding is vitiated by an error of law. Section 4 4 of the RAT Act confers on a

party to a proceedlng before the AAT a right of appeal
t o the Federal	Court of Australia 'from any decision of
the Tribunal in that proceeding'	but only 'on a

question of law'. The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be OK it must vitiate the findings made or it must have led the AAT to omlt to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evldence merely in order to demonstrate an error of fact."

It is, therefore, not for this Court to review the evidence

which was before the Tribunal and to support the Tribunal's

decision upon evidence which was not accepted by the

Trlbunal. Nor is it for thls Court to set aside the

Tribunal's careful reasons as being of nought.

We turn now to the last issue raised in the appeal,

that is, whether the Tribunal was correct in concluding that,

because work pressures had enhanced Mr Percival's

hypertension, whilst he was at work and thereby led to his retirement, and because he could not return to his work at the Bank as his hypertension would reactivate, Mr Percival

suffered from an incapacity for work which was compensable.

Section 2 9 ( 2 ) of the Act requires that the total or partial incapacity for work of the employee must result from

the disease or from its aggravation, acceleration or

recurrence if there is to be compensation therefor. This

provision turns its attention to a disease as it exists at

the time of the alleged incapacity.

The view taken by the Tribunal was inconsistent with

the approach adopted in Canberra Abattoir v. Asioty, cited above, and the several other cases to which we have referred and, In our opinion, was incorrect.

The view that there must be a continuing condition

which causes the incapacity was also adopted, under analogous

legislation, in Repatriatlon Commission v. - Moss (1982) 4 0

A.L.R. 553. The Court was there concerned with an unusual

' . - 14 -

provision in the Repatriation Act 1920 with respect to

tuberculosis. At p. 558, Fox J. said:-

"Economic consequences flowing from a physical or
mental condition from which there has been complete
recovery, or where complete restoration has been

effected, are not provlded for."

At p.567, Deane and Fitzgerald JJ. said:-

"The effect of the Tribunal's findings of fact in the

present case may be shortly restated. Mr Moss did not

at the date of the review have pulmonary tuberculosis
or any physical or mental disability related to the

pulmonary tuberculosis which he had earlier suffered;

his health was no longer affected and no longer

imposed any restriction upon his actlvlties.

...

The conclusions which we have reached, on the facts as found by the Tribunal, is that the disadvantages and lack of skills and abilities to which M r NOSS is

presently subject cannot properly be seen as an

incapacity for the purposes of the Act. They

represent the consequences of a past incapacity whlch

no longer exists. They do not constitute a present

incapacity in the relevant sense. It was not

disputed, on MC Moss' behalf, that the consequence of

that conclusion is that he decision of the

Repatriation Commission should be restored."

In the present case, the Tribunal found that Mr

Percival's stress at work had enhanced his hypertension and strain whilst he was at work. It made no such finding with

respect to his condition after his retirement and it is to be

inferred from the	whole of the Tribunal's reasoning that the
Tribunal was not satisfied that there	was any relevant

continuing aggravation of Nr Percival's condltion after his

retirement. Such a finding was essential if the Tribunal was

to hold that	MC Percival had a compensable incapacity for
work.

In these circumstances, the appeal must be allowed and

the Tribunal's decision set aside.

M C Emmett submitted that the Court should act on the

basis of the findings of fact made by the Tribunal and order

that Mr Percival's application for review made to the

Administrative Appeals Tribunal be dismissed. Howeve K,

although that is	a course which the Court may adopt when the
factual basis is clear, it is not	a course to adopt when the

evidence was complex and provides a basis for several

differing conclusions. In this case, it having been found

that the Tribunal approached the matter on a wrong basis, the

appropriate order is that the matter be remitted to the
Administrative Appeals Tribunal to be heard and decided again
with or without the hearing of further evidence. Such an

order will enable all matters to be considered.

The question of costs was not raised in the submissions

of counsel, no doubt because of the special provisions as to

costs contained in the Act. However, the Court will reserve the question of costs in case the matter was overlooked.

I certify that this and the 14

preceding pages are a true copy of the Reasons for Judgment herein of

Court.	the	n
Date:

* . - 16 -

Counsel for the appellant: Mr A. Emmett Q.C.

with M r P. Arden

Solicitor for the appellant:	Mr L.C.	Hollis
Counsel for the respondent:	MC B.J.	Gross Q.C.

with Mr A.R. Cooley

Solicitor for the respondent:	McClellands
Dates of hearing:	22-23 May 1988
Place of hearing:	Sydney