Commowealth of Australia v Daniel, Leslie Allen

[1997] FCA 220

IN THE FEDERAL COURT OF AUSTRALIA	)
)
DISTRICT REGISTRY	)     No.457  of 1996
)
GENERAL DIVISION	)

BETWEEN:		COMMONWEALTH OF AUSTRALIA Applicant
AND:		LESLIE ALLEN DANIEL
Respondent
CORAM:	EMMETT J.
PLACE:	SYDNEY
DATED:	20 FEBRUARY 1997

MINUTES OF ORDER

The Court orders that:

1. That the appeal be allowed.

2. That the direction made by the Administrative Appeals Tribunal in proceedings N94/510 and N94/511 be varied by deleting the words “including compensation” appearing after the words “Safety Rehabilitation and Compensation Act 1988”, and Compensation Act 1988”, and by deleting the words “and left C7 radiculopathy together with recurrent occipital headaches” appearing after the words “bilateral chondromalacia patellae”.

3. That the question of the level of permanent impairment in respect of left C7 radiculopathy and recurrent occipital headaches in proceedings N94/510 be remitted to the Tribunal to be determined in accordance with law, with the hearing of further evidence.

4. That the question of whether the Applicant should be directed to make any payment of compensation other than compensation under section 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 in proceedings N94/511 be remitted to the Tribunal to be determined in accordance with law, with the hearing of further evidence.

5. That the respondent pay the applicant’s costs of the appeal.

The Court notes that:

In the opinion of the Court it would be appropriate for the Attorney-General to authorise payment under the Federal Proceeding (Costs) Act 1981 (Cth) to the respondent in respect of:       

(i) the costs incurred by the Respondent in relation to the appeal, and

(ii) any costs incurred by the Applicant in relation to the appeal that have been or are required to be paid by the Respondent to the Applicant in pursuance of the orders of the Court made on 20 February.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)     No.457 of 1996
)
GENERAL DIVISION	)

BETWEEN:		COMMONWEALTH OF AUSTRALIA Applicant
AND:		LESLIE ALLEN DANIEL Respondent
CORAM:	EMMETT J.
PLACE:	SYDNEY
DATED:	19 FEBRUARY 1997

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: This is an application brought under section 44 of the Administrative Appeals Tribunal Act which permits a party to a proceeding before the Tribunal to appeal to the Federal Court on a question of law from a decision of the Tribunal in that proceeding. Reliance is placed on section 43(2B) which requires that where the Tribunal gives in writing the reasons for its decision, those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

In relation to the questions that are raised by section 44 and section 43(2B), it was contended that there will be an error of law if a failure to state the reasons for a crucial finding of fact can be characterised as a breach of the principle that justice must be seen to be done. Reference was made to the decision of Sheppard J in Brackenreg v Comcare Australia 56 FLR 335 at 352, a case which involved a failure by the Tribunal, so it was held, to deal with conflicts in the evidence. On the other hand, “the reasons for a decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error” (see The Minister for Immigration v Wu Shan Liang 185 CLR 259 at 272).

The respondent enlisted in the Australian regular army in January 1979.  On 16 April, 1986 he fell off his motorcycle while returning home from a compulsory army sporting activity. The Tribunal was satisfied that the respondent's fall from his motorcycle and the physical training undergone by him have caused a condition of cervical spondylosis.  It also found other conditions which are not presently relevant.  The Tribunal was seized of the matter following, first, a determination made on 3 May, 1993 that the respondent had contracted cervical spondylosis and, second, a decision made on 21 April, 1994 revoking that determination after reconsideration.

Reasons for the revocation were given on 23 September, 1994 by a delegate of the Department of Defence.  In its conclusion the Tribunal set aside the decision made on reconsideration and remitted the matter to the delegate with the direction that the respondent is entitled to the payment of compensation pursuant to the Safety, Rehabilitation and Compensation Act, 1988 (“the Compensation Act”) including compensation for permanent impairment and non-economic loss, occasioned relevantly by cervical spondylosis.

The Tribunal found the cervical spondylosis to exist and made a further finding of an impairment rating for the purposes of section 24 of the Compensation Act. Included in that rating were findings in relation the condition of radiculopathy and recurrence of occipital headaches.  In each case, the finding was that the degree of impairment was 10 per cent.

The Department of Defence is the holder of a class 3 licence under the Compensation Act.  In general terms, the effect of holding such a licence is that the Department which, for present purposes, is the Commonwealth as a juridical person, is to undertake the same obligations as Comcare for the purposes of the Compensation Act.

Under section 14 of the Compensation Act, the Department is liable to pay compensation in accordance with that Act in respect of an injury suffered by an employee if the injury results in, relevantly, incapacity for work or impairment. Section 16 then provides for liability in respect of certain medical expenses. Section 19 provides for liability to pay compensation in respect of the injury for various periods during which the employee is incapacitated. Section 24 provides for liability to pay compensation where the injury results in a permanent impairment.

Section 24 (5) required the Department to determine the degree of permanent impairment of the respondent under the provisions of the “approved Guide” as defined. Under section 24(6) the degree of permanent impairment is required to be expressed as a percentage. Table 13.1 of the approved Guide deals with intermittent conditions and is to be used in the assessment of certain disorders including intermittent disorders such as tension headache, etcetera.

It appears to be common ground that table 13.1 would be the appropriate basis for determining any impairment as a result of radiculopathy or occipital headaches related to spondylosis.  Table 13.1 states that the principles to be followed are:

"Determine the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living."

For the purpose of table 13.1, the activities of daily living are defined as meaning:

"....Activities which an individual needs to perform to function in a non-specific environment, ie to live."

The activities are stated as ability to receive and respond to incoming stimuli, standing, moving, feeding, control of bladder and bowel, self-care, that is bathing and dressing, etcetera, and sexual function.

In the table, a percentage level of impairment is set out in one column and the description of level of impairment is set out opposite it. For example, where an attack occurs 12 or more times a year and causes minor interference with those activities, or attacks occur less frequently and cause interference with all activities other than self-care, then the table requires assessment of impairment at 10 per cent.

In the proceedings before the Tribunal, it was apparently contended by the Department that the respondent's motorcycle accident was not of such a severity as to occasion the condition of cervical spondylosis.  The Tribunal observed, however, that when a disorder causing significant disability has been diagnosed and there is a history of trauma, for example, falling off a motorcycle, it is difficult not to accept that the fall played its part in causing the symptomatic condition.  That appears to be the reasoning which led the Tribunal to conclude that the respondent's fall from his motorcycle and the physical training undergone by him caused his cervical spondylosis.

The Tribunal, after dealing with a claim involving the Australian Customs Service in which the present respondent was unsuccessful, referred to the fact that two other matters were raised in the course of the proceedings which, it was said, would have an effect on the assessment of the degree of permanent impairment suffered by the respondent.  The two matters identified were left limb radiculopathy and a psychiatric condition.  The Tribunal rejected the claim in respect of the psychiatric illness and that claim has no present relevance.

The Tribunal dealt briefly with the question of the left limb radiculopathy, although no mention was made of occipital headaches.  At that point in the reasons, the Tribunal observed that as the condition of radiculopathy does exist and as a direct result of his cervical spondylosis, it must be taken into account when assessing impairment occasioned by that condition. The complaint by the Department is that, that is the extent of the fact finding by the Tribunal which led to the assessment of the impairment rating made by it. 

The Tribunal said that in assessing the degree of permanent impairment, it was materially assisted by the report of Dr Baz, observing that where her assessment of incapacity varied with other specialist medical practitioners, her opinion was preferred since she was well known to the Tribunal and the Tribunal had complete confidence in her expertise and objectivity. The reference to Dr Baz's report is a reference to a report of 4 April, 1996 which deals with spondylosis together with several other matters.  The Tribunal referred to assessments made by Dr Baz under tables 9.2 and 9.5 of the approved Guide relating to conditions which are not presently in issue.  The Tribunal then went on to say:

"Applying Dr Baz's report to the conditions which we find to exist the applicant's impairment rating is:"

and then set out, relevantly to these proceedings, cervical spondylosis 5, left C7 radiculopathy 10, recurrent cervical occipital headaches 10. No other finding is made by the Tribunal in relation to the matters covered by the report.

In the report Dr Baz first cites a history apparently obtained from the respondent as follows:

"Mr Daniel describes pain on movement of the neck, particularly lateral flexion to the right and there is pain at the extreme of rotation.  He is not aware of stiffness.  The neck discomfort increases if he holds his head still for a period, for example, when driving his car or using a computer. The pain radiates to the left shoulder and is associated with headache.  Periods of increased neck pain with headache and left shoulder pain occur three or four times a month.  He uses the TENS machine, applies heat packs, has a hot shower and takes Panadeine Forte during these exacerbations.  At other times, he uses the TENS three times a week for twenty minutes at a time."

Under the heading "headache" Dr Baz says the respondent describes:

"daily headaches which start in the occipital region, become temporal and then frontal.  They are throbbing in nature.  He uses Codalgin but usually has a persisting ache in the head despite this medication.  More severe headaches occur at least three times a month.  They interfere with what he does as he virtually can’t do anything and just wants to lie down."

Under the heading "Left shoulder pain" Dr Baz records:

"Exacerbations of neck pain are associated with pain in the left shoulder about three or four times a month.  Mr Daniel also describes shoulder pain occurring three or four times a month.  He describes distinct periods when he is free of pain. The exacerbations generally lasts more than four hours, but less than eight hours.  During exacerbations of the pain he cannot carry using his left arm and he lacks full power, for example, to turn the steering wheel."

Under the heading "Neurological" it is recorded:

"There is tingling about in the left long and ring fingers when neck and shoulder pain is more severe."

Dr Baz's assessment is that there is an impairment rating of five in respect of cervical spine movement.  She then deals with the left C7 nerve radiculopathy by saying, first:

"There are parasthesiae radiating to the left middle and ring fingers and pain in the left shoulder and scapula region. There is no sensory loss. A nil impairment rating applies."

and then:

"Exacerbations of neck and left shoulder pain occur two or three times a month. During these episodes Mr Daniel is unable to carry heavy objects with his left arm. Attacks occur twelve or more times a year and cause minor interference with activities of daily living. Table 13.1 allows an impairment rating of 10."

In relation to recurrent cervical occipital headaches, Dr Baz observes:

"Mild headaches occur on a daily basis. They cause no significant interference with activities of daily living. Table 13.1 allows a nil impairment rating."

She also says:

"Severe headaches occur about three times a month.  They cause minor interference with activities of daily living. Table 13.1 allows an impairment rating of 10."

Dr Baz also records under the heading "Lifestyle: Domestic chores" that the respondent says:

"He cannot do anything about the house during more severe attacks of pain. He always avoids heavy chores such as painting or digging a garden as they may exacerbate his neck and shoulder condition."

Under the heading "Leisure" Dr Baz records that the respondent:

"Spends his spare time at home with his family.  They go out about once monthly. He attends the Masons occasionally. He sees people socially less than previously. He used to be very active and enjoyed playing squash and abseiling."

Apart from those matters Dr Baz made no reference to the specific activities of daily living prescribed in the approved Guide.  That is to say, she makes no reference to the extent, if at all, to which the disabilities resulting from nerve radiculopathy and occipital headaches interfere with the ability to receive and respond to incoming stimuli, to standing, moving, feeding, control of bladder and bowel, self-care or sexual function.  The reference to interference with domestic chores does not seem to relate to the activities which are described in the approved Guide as the activities of daily living.

It may be, of course, that Dr Baz was intending by her assessment of an impairment rating of 10 to express the view that, having regard to the extent of the symptoms which she understood from the history which she had from the respondent the attacks would cause minor interference with some one or more of those activities.  She does not, however, say that. That, of course, may not be a criticism of Dr Baz since it may not be her task to make findings in terms of the approved Guide.

However, the task of the Tribunal is to make findings of fact and it is required to include its findings on the material questions of fact in its reasons together with a reference to the evidence or other material on which those findings were based. In order to reach a conclusion that the symptoms described by the respondent could cause minor interference with the activities of daily living, there must have been some evidence before the Tribunal which it accepted as supporting a finding that there was some interference with his ability to receive and respond to stimuli, his ability to stand, his ability to move, his ability to feed, etcetera, bearing in mind that feeding is expressly defined as eating and not the preparation of food. Section 43(2B) requires that reference be made to that evidence.

I have been taken to parts of the evidence given by the respondent which include evidence as to the frequency and severity of attacks. In cross-examination, however, some concessions were made by the respondent, at least in relation to some of the evidence given in chief. There is also a finding by the Tribunal that, at least in relation to some evidence given by the respondent, it was not prepared to accept the respondent as being a reliable witness. In the light of such a finding it become more important for the Tribunal to indicate just what evidence it was accepting, being the evidence upon which its findings on material questions of fact were based.

It was said on behalf of the respondent that the two matters with which issue is now taken by the Department were, in a sense, consequential issues and not the main bases upon which the litigation was conducted before the Tribunal.  Be that as it may, it appears to me that in making a determination of permanent impairment, the Tribunal must, of necessity, have had regard not only to the fact of the condition of cervical spondylosis, but also the frequency and severity of the symptoms resulting from that condition and the extent of interference with daily activities.

As I understand it, the finding of the Tribunal that the respondent's fall from his motorcycle caused the cervical spondylosis involved both a consideration of the medical evidence as well some acceptance of the existence of symptoms. It was contended on behalf of the respondent that the finding by the Tribunal, which had been contested by the Department, involved an acceptance of the extent of the symptoms deposed to by the respondent.

I am not satisfied, however, that that has any connection with the exercise which the approved Guide appears to require, namely, a consideration of the frequency, duration and severity of attacks with reference to the degree of interference with the activities defined as the activities of daily living.  In the circumstances, I am not satisfied that the reasons given by the Tribunal are sufficient to enable the parties to know how it is that the Tribunal reached the conclusion concerning the impairment resulting from the radiculopathy and occipital headaches.

Justice cannot necessarily be seen to have been done in circumstances where the respondent's evidence as to the degree of interference with the activities of daily living, are essential to an assessment of impairment rating, the respondent was not accepted, at least in some important respects, by the Tribunal, the respondent himself made concessions that his evidence in-chief should not regarded as correct, and the Tribunal does not deal with the evidence as to those matters.

A second ground upon which the decision of the Tribunal is impugned concerns the direction which it gave.  The decision was that the relevant decision under review be set aside and that the matter be remitted to the Department with a direction that the respondent is entitled to the payment of compensation, including compensation for permanent impairment and non-economic loss for the conditions of cervical spondylosis and bilateral chrondromalacia patellae together with the radiculopathy and occipital headaches.

The complaint made by the Department is that there is no finding recorded in the Tribunal's reasons concerning any entitlement to the payment of compensation other than compensation under section 24 of the Act for permanent impairment.  The Department contends that if there was intended to be a finding of entitlement to compensation under, for example, section 16 or section 19, there should have been findings on material questions of fact and a reference to the evidence upon which those findings were based.  There is, of course, neither in the Tribunal’s reasons for decision.

It is possible that the Tribunal intended to say no more than that it was making a finding of entitlement to compensation under section 24, but makes no finding one way or the other as to whether or not there is any entitlement under sections 16 or 19, such a matter is being left for another day.  Counsel for the respondent contended, as I understood him, that that is how the direction should be taken.  I am inclined to think that that is probably right. 

However, there does appear to have been some issue between the parties as to whether or not the question of any entitlement under section 19, for example, was in fact litigated before the Tribunal.  Counsel for the respondent says that although the matter was opened, at the end of the hearing it was clear

that the Tribunal was not being asked to make a determination of entitlement under section 19. In any event, I think it must be correct to say, as was contended for by counsel for the respondent, that no determination by the Tribunal could preclude a claim under section 19 in respect of future incapacity.

Whether the present determination would preclude a claim for past incapacity is perhaps a matter that might still be left up in the air by the Tribunal's determination.  Nevertheless, it seems to me that the language is not free from doubt and it would be appropriate to require the Tribunal to clarify what was intended by the direction that the respondent "is entitled to the payment of compensation including compensation for permanent impairment."

In the circumstances, I consider that the appeal should be allowed and I will invite counsel to address me on the question of the orders that ought to be made and the question of costs.

I certify that this and the preceding seventeen pages are a true copy of the Reasons for Judgment of his Honour Justice Emmett.

Associate:

Dated:       19 February 1997

Heard:       19 February 1997

Place:       Sydney

Decision:     19 February 1997

Appearances:   Miss R.M. Henderson instructed by the                    Australian Government Solicitor for the    applicant.

Mr M.B.Smith instructed by Whittens for the                   Respondent.