Dodds, L.G. v Comcare Australia

[1993] FCA 608

LESLIE GORDON DODDS v. COMCARE AUSTRALIA
No. SAG29 of 1993
FED No. 608
Number of pages - 4
Administrative Law Commonwealth Employees' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT J

CATCHWORDS

Administrative Law Commonwealth Employees' Compensation - appeal from Administrative Appeals Tribunal- whether incapacity continued to result from an aggravation of a disease - question of fact to be decided on medical evidence - obligation of Administrative Appeals Tribunal under s. 43(2B) to include in its reasons "findings on material questions of fact" - whether it was necessary to find the detailed complaints of the worker - whether those details were relevant matters not taken into account - obligation to give reasons an obligation of substance - whether the omission of a matter from reasons necessarily shows it has been overlooked - no error of law.

Administrative Appeals Tribunal Act 1975, s. 43(2B)

Compensation (Commonwealth Government Employees) Act 1971, s. 29

Watt or Thomas v. Thomas (1947) AC 484

Westpac Banking Corporation v. Spice (1990) 12 ATPR 51,386

Steed v. Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620

HEARING

ADELAIDE, 31 August 1993

#DATE 3:9:1993

Counsel for the Applicant: Mr A. Collett

Solicitors for the Applicant: Messrs Johnston Withers

Counsel for the Respondent: Mr J.G. Cummins

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

JUDGE1

BURCHETT J This is an appeal, limited to a question of law, from a decision of the Administrative Appeals Tribunal brought under s. 44 of the Administrative Appeals Tribunal Act 1975.

1. The case before the Tribunal was concerned with the question whether liability to make weekly payments of compensation, to which the applicant claimed to be entitled in respect of aggravations in 1981 and 1987 of a pre-existing arthritic condition, had ceased as at and from 29 April 1991. It was common ground that any liability which might have been found would have been based on s. 29 of the Compensation (Commonwealth Government Employees) Act 1971. The relevant provisions of that section are the following:
   

"(1) Where -

(a) an employee ... suffers an aggravation ... of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to ... the aggravation ... , whether or not the ... aggravation ... was suffered in the course of that employment, the succeeding provisions of this section have effect.

(2) If -

. . .

(e) The total or partial incapacity for work of the employee,

results from ... the aggravation ... of the disease, or the employee obtained medical treatment in relation to ... the aggravation ... of the disease, ... then, for the purposes of this Act, unless the contrary intention appears -

(f) ... the aggravation ... shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth".

1. In the present case, there was no dispute before the Tribunal about any of the matters required to be shown under s. 29(1); the dispute was as to the application of subs. (2) after 29 April 1991. Nevertheless, it is necessary to sketch the previous events in order to understand the nature of the matter.

2. The applicant, who was born on 5 May 1929, was an electrical fitter. At a time when he was apparently doing some work involving the cutting of masonry, on 20 April 1977, he suddenly jerked his head to avoid being struck in the face by pieces of the masonry. He sustained pain in his neck and lost some time from work. On 13 February 1978, he commenced work with South Australian Railways, and apparently transferred to Australian National Railways on 1 March 1978. In 1980, he received quite a lot of treatment for neck pain. On 18 March 1981, he was involved in a motor accident, as a result of which he suffered pain in his chest, neck and shoulders and was off work, except for one abortive attempt at returning, until February 1982. He received compensation in respect of that period. Between September 1982 and March 1984, he attended doctors on numbers of occasions in respect of his neck condition. On 3 April 1987, the applicant sustained a further injury in the course of his employment, when he felt pain in his neck after working on the underside of a railway carriage in an awkward position. He did not return to work for the remainder of that day, and his general practitioner diagnosed an aggravation of the arthritic condition of his neck. From about April 1987, he was given lighter duties in a store until about February 1990. He finished work on 6 June 1990, and it was proposed that he be retired on health grounds on 20 July 1990, but that action was suspended pending the outcome of the proceedings. Compensation was paid until 29 April 1991 for aggravation by virtue of the incident of 3 April 1987.

3. The facts, as I have summarized them, were the subject of an agreed statement of facts tendered at the hearing before the Tribunal. A considerable amount of evidence was also tendered, including conflicting medical evidence.

4. The Tribunal discussed the evidence in some detail. It took about two and a half pages to summarize what it called "the applicant's employment and injury history". The Tribunal then discussed over a number of pages the competing medical views, all of which accepted the applicant's underlying condition of degenerative changes of the cervical spine, or osteoarthritis, but differed as to whether aggravations of it, and particularly the aggravation in 1987, produced transient or permanent effects. The Tribunal noted that the only specialist rheumatologist to give evidence before it was Dr Begg, who was called by the respondent. (Two other specialists who gave evidence, Dr Girgis and Dr Cohen, were respectively an orthopaedic surgeon and a general surgeon. Dr Girgis, indeed, expressly conceded in evidence that Dr Begg, as a rheumatologist, "would be more qualified in the area ... of spondylosis and diagnosis of spondylosis". He said: "We leave it to the rheumatologist to deal with why this patient is getting it et cetera, so we leave it to them." "Spondylosis," Dr Begg said, "is the name given to degenerative changes in the cervical spine.")

5. In this state of the medical evidence, it is perhaps not surprising that the Tribunal looked to the evidence of Dr Begg for the answer to what was ultimately a scientific question, that is, whether the applicant's complaints of ongoing disability, some four years after the incident in 1987, were attributable to an aggravation then sustained or, assuming their reality, were due to his condition of osteoarthritis. The Tribunal resolved that question as follows:
   

"The Tribunal is satisfied and finds that Dr Begg obtained a history and conducted a thorough and complete examination and accepts his view, 'There is no residual disability as a consequence of the 1987 incidents' (sic) (the effects of which would be transient and self-limited). In essence, the Tribunal concludes that the degenerative changes already established in the neck were not permanently aggravated in 1987. For the reasons outlined above the Tribunal is satisfied and finds that the 1981 and 1987 incidents suffered by the applicant while in the employ of the respondent did not lead to a permanent aggravation of his condition.

... The Tribunal in arriving at its conclusion has considered the evidence as a whole including the medical evidence. The Tribunal is satisfied and finds that the applicant suffered injury in the course of his employment with the respondent but that none of the incidents have led to a permanent aggravation of his condition. Further, the applicant has a degenerative joint disease which, when disturbed, may produce short lived pains but which does not of itself produce the long continued symptoms complained of by the applicant."

Accordingly the Tribunal affirmed the decision that the alleged liability had ceased.

1. Counsel for the applicant drew attention to the obligation stated in s. 43(2B) of the Administrative Appeals Tribunal Act. That subsection requires the Tribunal to include in its reasons in writing "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". Counsel's principal argument was that the Tribunal, by concentrating on the medical evidence, had failed to make findings which were required of it concerning the symptoms and disabilities present after 3 April 1987. (There was no suggestion adequate findings had not been made concerning the applicant's condition prior to 3 April 1987.) The same alleged deficiency in the reasons was claimed also to amount to a failure to take relevant matters into account.

2. So far as the argument is based on the proposition that the Tribunal failed to take relevant matters into account, the Court should not ignore the consideration that a matter which has been passed over in silence in the Tribunal's reasons is not therefore to be assumed to have been overlooked. Of course, in a particular case it may be inferred that the matter was overlooked, or perhaps that it was thought to be unimportant. But a court or tribunal may omit to mention something it has nevertheless had well in mind in reaching its decision. This proposition was emphatically asserted by Lord Simonds in Watt or Thomas v. Thomas (1947) AC 484 at 492 in a passage cited in Westpac Banking Corporation v. Spice (1990) 12 ATPR 51,386 at 51,398. Cf. Jones v. Hyde (1989) 63 ALJR 349 at 351, and see Steed v. Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621, per Fox J delivering the reasons of the Court (Fox, McGregor and Morling JJ). Here, moreover, it will be noted that, in the passage I have cited from the reasons of the Tribunal, express reference is made to its consideration of "the evidence as a whole including the medical evidence".

3. So far as s. 43(2B) is concerned, I do not think this case calls for elaborate discussion. A consideration of the nature and effects of such an aggravation as was alleged to have occurred, not by some violent event but in a quite undramatic way, on 3 April 1987, and of the question whether that aggravation resulted in the incapacity alleged, some four years later, inevitably involved the application of medical science to the facts. A fair reading of the evidence of each of Drs Girgis, Cohen and Begg does not suggest that the answer, in this case, depended on the resolution of some dispute about the particular symptoms or disabilities claimed to have been present during the period after the aggravation. All three doctors expressed opinions on the assumption the symptoms and disabilities alleged on behalf of the applicant did manifest themselves during this period. Of course, various assumptions were put to them in cross-examination. In particular, the complaints made by the applicant after April 1987 were put by his counsel to Dr Begg in cross-examination, and were considered by him in the evidence he gave to the Tribunal. In that situation, it seems to me to be impossible to suggest that the failure to elaborate the details of each individual complaint, made by the applicant in respect of the period in question, was a failure to make a finding on a material question of fact within the meaning of s. 43(2B). It was open to the Tribunal to accept the evidence of Dr Begg, and on that basis the only findings of fact which were material were those which he found necessary to support his opinion, and to refute opposing points of view.

4. The obligation to furnish reasons, and to furnish reasons which are adequate, is a very important obligation. It is a pillar of the system of administrative decision-making by the Tribunal, and it is essential that the Court should insist on its fulfilment. But it is the substance of the obligation that matters. Indeed, as Lord Sumner pointed out in S.S. Hontestroom v. S.S. Sagaporack (1927) AC 37 at 50, even a judge's reasons on a question of fact will not be vitiated by "imperfections in form and expression". Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons expose the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include "findings on material questions of fact". There was no such failure here.

5. Counsel for the applicant then suggested that a concession was made by Dr Begg, which should have been reflected in a finding that there was some continuing disability, even if slight. It is true that Dr Begg did, at one point in his evidence, concede the possibility that "a very small amount" of the applicant's symptoms "may be due to the permanent effects of the incident" in April 1987, "if indeed his symptoms have not recovered from April 87". But even this guarded concession was the subject of further evidence from the doctor. He said: "I would say that it was insignificant". He also said of the applicant's complaints:
   

"It's impossible to be certain one way or the other, but if one goes on medical experience of how other peoples' necks behave as they get older, without having any injuries whatsoever, this is perfectly in accord."

1. The concession that there may be some slight continuing aggravation does not, it is quite clear, destroy the doctor's opinion on the probabilities that there is none. The Tribunal was entitled to accept and act upon his opinion, and not his doubt. Particularly is this so as the orthopaedic surgeon who gave evidence on the other side was by no means free of concessions of his own. Dr Girgis said: "I'm not able to attribute his neck and lumbar spine condition to any specific injury or accident." Asked: "What do you attribute it to?" he answered: "Systemic degenerative changes." He also regarded it as "astonishing" that the applicant had been off work for 11 months or more in 1977, and a "discrepancy" that the alleged aggravation in 1987 produced only "one and a half days off".

2. Be that as it may, the decision of fact was for the Tribunal, and that decision cannot be disturbed in this Court except upon a point of law. In my opinion, no error of law is disclosed in the present appeal. The appeal will therefore be dismissed with costs.