Elleissy, M. v Australian Telecommunications Commission

[1989] FCA 379

Re: MOHAMMED ELLEISSY
And: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
No. G836 of 1988
FED No. 379
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - appeal from decision of Administrative Appeals Tribunal reviewing determination that applicant's entitlement to compensation under Compensation (Commonwealth Government Employees) Act 1971 had ceased - whether Tribunal correctly placed onus of proof - whether Tribunal failed to consider relevant medical evidence or evidence of applicant - separate issues raised by s.29(1)(b) of contraction and of aggravation or acceleration of disease - whether Tribunal erred in law by adopting evidence relating to contraction as evidence relating to aggravation or acceleration - whether employment can contribute to an illness which would otherwise have occurred.

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

HEARING

SYDNEY

#DATE 14:7:1989

Counsel and Solicitors J Anderson instructed by
for Applicant: Steve Masselos & Co.

Counsel and Solicitors R Greig instructed by
for Respondent: Australian Government Solicitor

ORDER

The appeal be allowed.

The decision of the Administrative Appeals Tribunal constituted by Mr B J McMahon, on 10 March 1988, be set aside.

The matter be remitted to the Administrative Appeals Tribunal to be heard and decided with the hearing of further evidence and in accordance with law.

The respondent pay the applicant's costs of the appeal.

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

JUDGE1

The applicant appeals to this Court from a decision of the Administrative Appeals Tribunal constituted by Mr B J McMahon, Senior Member given on 10 March 1988.

1. Before the Tribunal were applications to review two decisions. The first, was a determination of a delegate of the Commission for Employee's Compensation dated 15 July 1986 whereby the delegate determined that the Commission was not liable to pay compensation to Mr Elleissy on and subsequent to 15 July 1986. The second decision to be reviewed was a determination which is dealt with by Mr McMahon in his Reasons but which was not the subject of argument before me. It was accepted that in respect of that decision there was no error of law.

2. The applicant worked for the respondent ("Telecom") from 1971 until 1983 as an assistant technician. During the period of his employment he suffered what Mr McMahon referred to as "an extraordinary number of accidents". It is unnecessary for present purposes to detail them. Suffice it to say that Mr McMahon referred to seven separate occasions in which the applicant had been injured and had been, at least on some of the occasions, unable to work for periods from one week to one month.

3. On 1 July 1983 the applicant was involved in a motor vehicle accident in which he sustained injuries to his back and neck. He continued to work for approximately two weeks but following an assessment from a Commonwealth Medical Officer and further administrative action he received an instruction not to return. He ceased work on 13 September 1983 and has had no employment of any kind since that date.

4. Following upon the 1983 incident a determination was made that the respondent was liable to pay compensation to the applicant under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") in respect of "back and left leg pain due to exacerbation of previous back injury". As Mr McMahon observes payments were made pursuant to this determination until 15 July 1986 on which date a delegate made a fresh determination in the following form:
   

"1. On the evidence before me I am unable to find that the employee is now totally incapacitated for work as a result of the personal injury sustained on 1 July 1983.

2. NOW THEREFORE in pursuance of the provisions of the Compensation (Commonwealth Government Employees) Act 1971, and further to determinations previously made in this matter I hereby determine that the Australian Telecommunications Commission is not liable to pay compensation to the employee under s.45 of the Act (total incapacity) from the date of this determination."

1. A letter accompanying the determination and which substantially repeated its terms contained the following comment:
   

"I realise that the medical evidence indicating that you are no longer totally incapacitated for work has existed for some time. I have, however, ceased your entitlement to compensation from today's date, to avoid the possibility of creating an overpayment."

1. At the hearing before Mr McMahon the applicant's counsel called the applicant to give evidence and tendered three medical reports preceding the date of the determination under review which he said should have been included in the documents provided to the Tribunal under s.37 of the Administrative Appeals Tribunal Act 1975 (Cth) and a contemporary medical report by Dr Mendelsohn. One may be excused from commenting that the difficulties in the present appeal stem largely from this course.

2. The course chosen by the then counsel for the applicant was taken, apparently, relying upon what was said by the High Court in Commonwealth v. Muratore (1978) 22 ALR 176 for the proposition that in a case such as the present the burden of proof lay upon the respondent to show that circumstances had changed between the making of the initial determination that the applicant was entitled to compensation and 15 July 1986 when the determination under review by the Tribunal was made.

3. The Tribunal considered medical evidence given by Dr. Tomlinson (a surgeon) and Dr Chan who gave oral evidence in favour of the respondent at the hearing and weighed that against doctors' reports of Drs Farag, Taylor and Mendelsohn and concluded that:
   

"...the respondent has discharged its onus, and has demonstrated the necessary "material change of circumstances" referred to in Phillips v. Commonwealth 110 CLR 347 at 350."

1. At paragraph 30 of his Reasons, Mr McMahon commented:
   

"I have dealt with the back claim purely on the medical evidence presented before me. I did not consider it necessary to rely upon the applicant's account of events. However, as an issue was made of his credit, I think I should, in fairness, say something directed towards that subject."

1. Mr McMahon then proceeded to consider evidence which went to the applicant's credit and found him to be a witness of truth suffering from all the symptoms of which he complained. In paragraph 31 Mr McMahon said of the applicant: "He is, in my view, a sick man." After referring to the applicant's medical problems Mr McMahon continued:
   

"With a history of compensation claims, it is not surprising that he genuinely believes that his work is the appropriate cause. Belief, however sincerely held, is not enough unfortunately to substantiate a compensation claim. Whilst I cannot but sympathise with the applicant's illness, and his natural feelings resulting from his organic deficiencies, I cannot find, on the evidence before me, that he has established a connection between the 2 areas of complaints the subject of the two determinations and his former employment with the respondent to the degree necessary to entitle him either to a resumption of compensation in respect of the earlier claim or payment of compensation in respect of the later claim."

1. Counsel for the applicant with the consent of the respondent filed with leave an amended grounds of appeal containing the following grounds:
   

(a) The Tribunal held improperly that the onus of proof in making out a case was upon the Applicant.

(b) That the Tribunal failed to take into account relevant evidence given by the Applicant.

(c) That the Tribunal applied an improper principle of law in determining whether the Applicant's continuing incapacity was relevantly connected with the employment.

(d) That the Tribunal failed to take into account relevant evidence with respect to the issue of the degree to which the employment aggravated or accelerated the Applicant's disability."

1. The third ground of appeal, it was stated, was intended to cover an argument that the Tribunal failed to consider whether the employment of the applicant was a contributing factor to the aggravation or acceleration of the applicant's disease. However, it was also agreed that this ground would cover an additional argument that in accepting the evidence of Dr Chan the Tribunal fell into error because that evidence was itself tainted with a legal error.

2. It is convenient to consider separately each of the grounds of appeal.
   Ground 1 - Onus of Proof

3. In Commonwealth v. Muratore (1978) 22 ALR 176 Jacobs J, with whom Gibbs, Stephen and Aicken JJ agreed said at p 180:
   

"... the Commonwealth, when it alleges that the employee is physically able to earn, in some suitable employment or business, a weekly amount which is not less than his weekly pay at the date of injury is alleging nothing relevantly different from an allegation that he has no physical incapacity for work producing an incapacity to earn those wages. The position would be no different if it were alleged that his degree of incapacity for work had diminished so that his compensation should be reduced. In both situations the Commonwealth is, or would be, alleging that the circumstances of the employee had changed; and the onus lies upon the party alleging the change of circumstances to prove it. The position is quite different if there has been no previous finding of partial incapacity with a consequent assessment of the compensation payable. It is established that the employee then bears the onus of proving the partial incapacity for work and its reflection in the degree of his loss of ability to earn: J & H Timbers Pty Ltd v. Nelson (1972) 126 CLR 625."

1. In coming to this conclusion Jacobs J referred to what was said in Phillips v. Commonwealth (1964) 110 CLR 347 at 350:
   

"Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances."

1. In Muratore Murphy J put the proposition very simply when his Honour said of a case involving a variation of an existing determination:
   

"It is a simple application of the principle that he who asserts must prove."

1. Muratore was an appeal from the Australian Industrial Court brought to the High Court by special leave. Under s.63(1)(b) of the then Compensation (Commonwealth Government Employees) Act 1971 application could be made by a party to a determination of a delegate to a prescribed court for a judicial review of the determination. Jurisdiction was then conferred on that prescribed court to hear applications to it. The Workers' Compensation Commission of New South Wales was a prescribed court. In accordance with s.92(1) the hearing of application for judicial review of a determination was in the nature of a rehearing, subject to any constitutional difficulty in which case the prescribed court was to remit the case to the Commissioner for redetermination in accordance with the directions of the court.

2. In the circumstances of Muratore therefore it is not surprising that the High Court should hold that in a case where judicial review by way of rehearing was to occur in a court one party or other must have the onus of proof.

3. Similarly in Phillips a person affected adversely by a determination was given a right under the Commonwealth Employees' Compensation Act 1930-56 to appeal to a county court and those proceedings too were proceedings by way of rehearing.

4. Counsel for the respondent did not seek to argue before me that onus of proof was an irrelevant matter in the Administrative Appeals Tribunal but accepted the submission of the applicant that the onus lay upon the Commissioner. It was argued that the Reasons of Mr McMahon overall make it clear that his Honour saw the onus of proof as lying upon the Commonwealth and that in the result no error of law was involved.

5. The question of onus of proof in proceedings under the Compensation (Australian Government Employees) Act 1971 (Cth) was considered by me in Casarotto v. Australian Postal Commission (unreported) 14 April 1989. As I there pointed out, concepts of onus of proof taken from adversary proceedings are inapplicable in administrative proceedings in the social security area: McDonald v. Director-General of Social Security (1984) 1 FCR 354 although it may well be that what was said by Woodward J in McDonald should be confined to the context of social security legislation. As a practical matter however it will be necessary for one party or the other to commence before the Tribunal and to have an evidentary onus to put before the Tribunal relevant facts.

6. It is not necessary in this case, just as it was not necessary in Casarotto, to decide whether one party or the other does bear the onus of proof. For even if the Commission did bear the onus in the present case it does not seem to me that Mr McMahon reversed the onus. The only suggestion that he did was the passage which I have already quoted from paragraph 31 of his Reasons which read literally suggests that he was of the view that the applicant before him had the burden of showing a connection between the disease from which he suffered and his former employment. Had that passage stood alone it would have suggested that Mr McMahon had placed the onus upon the applicant rather than the Commission in which case his Reasons would have disclosed an error of law. However, the discussion of the relevant law in paragraph 13 of the learned Member's Reasons where he said of the proposition taken from Muratore that it was clearly correct and that there was no serious dispute on that subject and coupled with the conclusion which the learned Member reached at paragraph 21 of his Reasons that the respondent had discharged its onus makes it clear to me that the learned Member either did not in paragraph 31 intend to suggest that the applicant had the onus, or less probably, if he did so intend, that this was a slip which did not affect his judgment since the relevant matter had been determined in accordance with the right test some many paragraphs earlier in the Reasons. Other references to onus in paragraphs 14 and 17 to the respondent needing to "displace" the onus and to the applicant not carrying the onus reinforce this view.

7. Accordingly, if it be right to talk at all in terms of onus of proof, in my view, Mr McMahon did not err in law in suggesting that the onus of proof of making out a case lay upon the applicant.
   Ground 2 - Failure to Take into Account Relevant Evidence - the Applicant's Evidence

8. For the applicant it was submitted that Mr McMahon had erred in law by failing to take into account relevant evidence of the applicant and also relevant medical evidence.

9. The relevant evidence of the applicant which it was said Mr McMahon ignored was to be found at p 16 of the transcript of oral evidence when in response to a question of Mr McMahon as to how his back felt the applicant said:
   

"I carried the pain a long ago since when I had the accidents. You know, the pain in my body, you know it is all the time, and sometimes, ... for a fews hours and back again. You know, it is all the time. And I have pain across my back and my left leg always - it is a very bad leg since when I had the accident, and it has moved, the pain, from the left leg to the right leg, and if I cough, or, you know, do something, stand up straight away, forget myself and stand up straight away, something like that, the pain increase, and sometimes, sneeze, my back is blocked, and sometimes when I wash my hand and mouth, or something like that, and I bend and I get up, I could not. It depends, you know, the wrong movement or anything like that, I get worse all the time."

1. Another passage indicating continuous pain was also referred to.

2. It will often be the case that a finder of fact makes no specific mention of a particular piece of evidence. After all, the reasons for decision in any particular matter will as a matter of practicality normally not refer to the entirety of the evidence. The Tribunal in giving its reasons will select from the evidence those matters which it regards as particularly relevant and make findings of fact in respect of those matters upon which its ultimate decision relies. The present case is no exception.

3. It is true that in the present reasons for decision there is no direct reference to the applicant's own evidence. Most of the discussion is concerned with the medical evidence. But it does not follow from this that Mr McMahon overlooked the applicant's evidence. That he did not is clear from paragraph 31 of the Reasons where Mr McMahon makes it clear that he accepts that the applicant genuinely believed his work to be the cause of his medical condition. That is an acknowledgment by Mr McMahon that the applicant had pain which the applicant believed arose from his work.

4. However, it is clear from the Reasons that Mr McMahon regarded the issue of whether there was a connection between the applicant's medical condition and the 1983 accident as being a medical one. So at paragraph 30 he said quite clearly:
   

"I have dealt with the back claim purely on the medical evidence presented before me. I did not consider it necessary to rely upon the applicant's account of events."

1. While this comment is made in the context of what thereafter followed in that paragraph, namely a discussion of the applicant's credit, I think that it emphasises the view taken by Mr McMahon that the issue before him was one of a medical kind. Whether this view was correct requires an analysis of what the issue was that was before him.

2. The liability of the Australian Government to pay compensation to an employee under the Act in a case such as the present arises from the combined effect of ss.27, 29 and 45 of the Act. Section 27(1) provides:
   

"If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act."

1. Section 29 provides relevantly:
   

"(1)Where -

(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence 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 disease, or from the aggravation, acceleration or recurrence of the disease ... then, for the purposes of this Act, unless the contrary intention appears -

(f) the contraction of the disease or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; ..."

1. Finally, s.45(1) provides for compensation to be payable in a case where an injury to an employee results in the employee being totally incapacitated for work. The expression "totally incapacitated for work" is given content by the provisions of s.26 which effectively act as a definition of the expression.

2. Under s.20(1) of the Act the function of the Commissioner for Employees' Contribution is to determine all matters in questions arising under the Act. Determinations made by him after consideration of the substantial merits of the case are required to be in writing (s.20(3)) and the Commissioner may, inter alia, of his own motion, reconsider any determination and make a determination varying or revoking a determination originally made by him. Thus where an employee claims to be entitled to compensation the Commissioner is required to make a determination in writing whether there has been a relevant injury to an employee which results in the employee being totally incapacitated for work. Thereafter it is one of the functions of the Commissioner to monitor the situation and at an appropriate time having regard to all the circumstances of the case to reconsider his initial determination if that has been favourable to an employee. At the time of reconsideration the Commissioner will be required to consider in a case such as the present whether the employee is totally incapacitated for work, whether that incapacity for work arises as a result of an injury to the employee and whether within the meaning of ss.27 and 29 the personal injury arose out of or in the course of the employment of the employee. If these matters are found adversely to the employee then a fresh determination is made. It is that fresh determination which is the subject of review following a request under s.63 by a Compensation Tribunal and of course ultimately it is that fresh determination that must be reviewed by the Administrative Appeals Tribunal.

3. Thus the issue before Mr McMahon can be said to be whether in the sense conferred upon these words having regard to the sections to which I have made mention, the applicant's incapacity for work resulted from an injury to the applicant which arose out of or in the course of his employment. It seems that it was accepted by the parties before the Tribunal that the applicant was in the relevant sense totally incapacitated for work. Thus it was necessary for Mr McMahon to determine whether the applicant's employment was a contributing factor in the present case either to his contracting the back problem which the applicant undoubtedly had, or to the aggravation or acceleration of it. Recurrence was not in issue and hereafter I will omit reference to recurrence when discussing the issues between the parties. Once it was accepted, as apparently it was, before Mr McMahon, that the 1983 determination was properly made, the only issues before the Tribunal were whether the incapacity continued (which did not seem to be in dispute) and if so whether the incident in 1983 still played some part in it. While I would not say that the applicant's own evidence as to the fact that the injury continued was irrelevant to either of these issues both of the issues which I have identified are ultimately medical issues not dependent upon the applicant's own subjective opinion. Accordingly, I do not believe that Mr McMahon fell into error in failing to take account of the applicant's evidence to which I have referred even assuming, contrary to my view, that he did fail to take this evidence into account.
   Ground 3 - The Medical Evidence

4. It was submitted that the Tribunal had failed to take into account certain medical evidence adduced on behalf of the applicant. In particular it was said that the Tribunal failed to take into account a report by Dr Farag of 17 April 1984, what was said by Dr Mendelsohn in his report of 16 December 1987 and in part what was said by Dr Chan.

5. Dr Farag's report did no more than say that as at its date the applicant had suffered a lumbar disc injury which had been exacerbated by the motor vehicle accident. It assisted not at all in my view in coming to a conclusion whether as at 15 July 1986, the date of the determination appealed from, the applicant was totally incapacitated as a result of his work related disease in the sense in which those words must be understood in the context of the legislation or whether his employment was still at the date of the determination a contributing factor to the aggravation or acceleration of the disease.

6. Dr Taylor in his report in 1986 expressed the opinion that the applicant as a result of the 1983 accident had a stiff uncomfortable neck with restricted movements and a stiff uncomfortable back which is intermittently painful. He was of the view that the prognosis for continued improvement was guarded and that the applicant's symptoms were all related to the accidents that had been sustained over the years. This evidence was relevant to the issue before Mr McMahon but it can hardly be said that Mr McMahon did not consider it. It is true that Mr McMahon expressed the view of the reports of each of Drs Farag, Taylor and Mendelsohn that they were "equivocal" and did not link the applicant's medical condition in any positive way with the after effects of the 1983 accident but that is indeed the case.

7. In paragraph 17 of the Reasons the relevant part of Dr Taylor's report was extracted in full and Mr McMahon noted that the 1983 incident was not specifically identified as a contributor to the applicant's symptoms. The difficulty in the way of the applicant's submission, however, is to be found in paragraph 20 of Mr McMahon's Reasons where the learned member emphasises that he has considered "the strong and positive evidence brought forward on behalf of the respondent, and weighed it against the equivocal evidence of the applicant" and ultimately concluded that the respondent had demonstrated a material change of circumstances since the initial determination. What essentially the applicant seeks to do is to say that Mr McMahon should have given more weight to the report of Dr Taylor than he did. However, that was a question for Mr McMahon and him alone and does not raise a question of law in respect of which this Court is empowered to intervene.

8. Dr Mendelsohn in his report on 16 December 1987, the relevant part of which was extracted in Mr McMahons's reasons for decision said:
   

"Mr Elleissy would appear to have been suffering an underlying spondylolisthesis of his lumbar region which was aggravated by a series of incidents that he describes. It is not possible to say which of these, if any, caused the disc prolapse, but may

(sic) have been a combination of all of these, together with constitutional changes. At this stage, most of his problems are probably due to the underlying degeneration, but the incidents that he has described have probably all hastened the degenerative process. It is not possible to pick out one or more incidents as being the most likely to have caused the increase in his problems."

1. Mr McMahon commented that Dr Mendelsohn's report was "in quite equivocal terms". The applicant has not demonstrated to me that Mr McMahon failed to take Dr Mendelsohn's evidence into account. The description of the evidence as equivocal is not innacurate although that is not an issue before me.

2. Finally, reference was made to Dr Chan's evidence. In his report Dr Chan said, inter alia:
   

"5. His previous injuries mentioned or otherwise, may have aggravated his spinal condition. The immediate effect is pain which requires varying periods of rest. The long term effect is debatable. My own feeling is that the condition will worsen but having said that, I also think the forces needed to initiate such changes are slight and unavoidable in normal living. In other words, it is ludicrous to put blame on any employer for requiring the employee to travel to work and work in an upright position as in the process of trying to keep the vertebral column upright, muscular forces are at work continually and any temporary imbalance can strain the joints."

1. There is no doubt that Mr McMahon considered Dr Chan's evidence. Indeed, he relied upon it in coming to his conclusion. However it certainly seems that Mr McMahon relied rather more on what was said by Dr Chan in oral evidence, particularly the following passage:
   

"MR McMAHON: Dr Chan, I want you to assume that in 1983 Mr Elleissy was then suffering from his spondylolisthesis and that he had an accident - a jarring accident which affected his lumbar spinal condition. This is in 1983. And I want you to assume that that accident aggravated his condition at that stage. Now, when you examined him in February 1988, almost five years later, did you see any signs of continued aggravation or any signs that you could attribute to that continued aggravation?---No, I - no.

You have said specifically in your report that his lumbar spinal condition is not the result of his employment. On what grounds do you base that opinion?---His spine would probably be in the same condition if he had follow a more or less the same sort of occupation, say, one which does not use 100 per cent of his back as much as a, say, a lumberjack, where his back movement would be a lot worse.

You say it is entirely a degenerative condition?---Entirely degenerative. But in saying that, have you taken into account these accidents that he has suffered, including in particular the one in 1983?---These injuries, be it serious or not very serious, would occur whether - whether he was in this particular occupation or not, see. Even walking around, travelling on trains would contribute to these degenerative conditions."

1. It cannot be said that Dr Chan's evidence was not considered. Further, it was open to Mr McMahon to place weight upon that which was said by Dr Chan in this oral evidence in preference to the rather equivocal way in which the matter had been dealt with in paragraph 5 of Dr Chan's report, at least assuming the Tribunal understood the distinction involved in the context in which each was given.
   Ground 4 - Wrong Principles of Law affecting the Evidence and ultimate Conclusion

2. Under this heading there are two independent questions which are raised; both of them are of some importance. The first requires a further consideration of Dr Chan's evidence.

3. In giving his report Dr Chan was asked a series of questions and it is his replies which caused Mr McMahon to ask the questions he did in crossexamination. For relevant purposes the questions asked of Dr Chan were as follows:
   

"1. From what condition does the employee now suffer, or from what condition does the employee appear to have suffered in the past?

2. On the balance of probabilities (as distinct from possibilities) is this condition due to -

(a) the employment of the employee, or was the employment a contributing factor?

(b) the aggravation, acceleration or recurrence of a pre-existing or underlying condition being an aggravation etc. to which the employment was a contributing factor?

(c) the natural progression of some pre-existing or underlying condition?

(d) some other factor and, if so, what was the factor? ...

5. If employment has caused or aggravated this condition, are the effects of a permanent or temporary nature and, if temporary when would it be reasonable to assume that the effects would cease."

1. The actual answers given to these three questions were as follows:
   

"1. He has degenerative lumbar spinal condition consisting of lower intervertebral disc and spondylolisthesis. He also has right ulnar nerve paresis affecting sensory division, and flexion of the medial two fingers.

2. a) They are not the results of his employment. b) Not applicable.

c) Gradual deterioration is the rule, but symptoms may fluctuate in intensity. d) His weight will be the major contributory cause to his back degeneration. ..."

5. See above.

1. When Mr McMahon refers Dr Chan, in the passage to which I have already referred, to Dr Chan's opinion that the lumbar spinal condition was not the "result" of his employment (presumably the foundation for Mr McMahon's comment that the evidence was unequivocal) it must be noted that Dr Chan's written answer (2(a) which was unequivocal) was in reply to the specific question whether employment was a contributing factor to the present illness. That is of course not the only issue to which s.29 directs attention.

2. It will be recalled that s.29(1)(b) looks alternatively to whether the employment by the Commonwealth was a contributing factor to the contraction of the disease or whether it was a contributing factor to the aggravation, acceleration or recurrence of the disease. The meaning of the words "aggravation" and "acceleration" and the related issue of what is meant by the requirement that the employment be a contributing factor to the aggravation or acceleration of a disease has been the subject of a number of decisions which I have discussed in Casarotto (supra). For present purposes it is sufficient to say that the issues of whether the employment was a contributing factor in the disease itself or in the aggravation or acceleration of the disease are each separate issues. Aggravation and acceleration have different although partly overlapping meanings. Both words suggest that there is an existing disease and where aggravation is involved the case will be one where the existing disease has been made worse, or more serious to the patient. Acceleration probably involves a progressive disease, the onset or seriousness of which is speeded up. It is not quite clear what Dr Chan meant in his report when he answered question 2(b) as not applicable, having regard to his subsequent answer to question 5 which seems effectively to be an answer to 2(b). That answer was certainly not unequivocally against the applicant. It is submitted that Mr McMahon, in adopting Dr Chan's evidence in reply to question 2, fell into error because Dr Chan himself fell into error in considering one, but only one of the matters to which s.29 directs attention.

3. Where the Tribunal adopts the evidence of a witness on the wrong issue then it would generally be clear that the Tribunal had erred in law in its conclusion for the Tribunal will have itself addressed the wrong issue. The same is true if the Tribunal, faced with evidence of a witness on two separate issues, adopts the evidence on one, fails to consider the evidence on the other and treats the evidence on the one as evidence on both issues. That seems rather to have been the present case.

4. When Mr McMahon says in his Reasons that the evidence of Dr Chan was strong and positive, it rather seems that that evidence, both in the report and in the response to Mr McMahon, was directed only at one but not both of the issues that arise under s.29.

5. It may be said against this view that the first passage in Mr McMahon's questioning of Dr Chan may have been directed at the issue of aggravation or acceleration. However, it seems to me clear that in reaching the conclusion as he does specifically in paragraph 20 that the degenerative lumbar condition was not the result of the applicant's employment, Mr McMahon must have been considering only the issue of whether the employment was a contributing factor to the contraction of the disease rather than looking at the question of whether the employment constitutes a contributing factor to the aggravation or acceleration of the disease, questions the Tribunal was required to consider in the course of deciding whether the existing determination of the Commissioner should be varied.

6. Accordingly it seems to me that Mr McMahon has fallen into error and that the appeal must accordingly be allowed.

7. The applicant also criticised Mr McMahon's reasons because, it was said, the evidence of Dr Chan was based on a flawed legal premise, that premise being that the applicant's medical condition would have been the same whether he worked for the Commonwealth or whether he worked for anyone else; in other words it was work, work in an upright position and travel to work which caused, aggravated or accelerated the applicant's medical condition rather than work as such with the Commonwealth. This premise so far as it related to the present legislation was, so it was submitted, in conflict with the decision of this Court in Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235.

8. In Westgate the applicant for workers' compensation suffered from a depressive illness to which, it was found by the Administrative Appeals Tribunal he was prone and had a history of such illness. In rejecting Mr Westgate's claim for compensation the Administrative Appeals Tribunal expressed the view that the applicant's depression was triggered by the fact of having to work at all rather than by some characteristical condition of the work. In rejecting this approach Davies J said:
   

"Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease."

1. In so finding his Honour referred to comments made in a number of the leading cases, particularly by Windeyer J in Federal Broom Co Pty Ltd v. Semlitch (1964) 110 CLR 626 at 641-2, and by Windeyer J in Ogden Industries Pty Ltd v. Lucas (1967) 116 CLR 537 at 593-4. In the former Windeyer J, discussing the requirement that employment be a contributing factor either to the contracting of the disease or to its aggravation, acceleration or recurrence said:
   

"When the Act speaks of "the employment" as a contributing factor, it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."

1. In the latter his Honour said:
   

"The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury."

1. If it be the case that any movement at all can exacerbate, aggravate or accelerate a lumbar condition and if work or going to work inevitably involves movement, can it be concluded from what was said in Westgate that compensation must as a result be paid? If this be so then virtually every person with a bad back would be entitled to compensation. With respect to the argument I do not think that it follows from the judgment in Westgate. The issue for consideration under the Act is whether what the worker in fact does in his employment contributes in a positive and material way to the contracting of, acceleration of, or aggravation of the applicant's illness.

2. The factual situation of the person suffering a bad back differs considerably from that of the depressive in Westgate. The Tribunal in Westgate had found as a fact that certain incidents occurring in the course of the applicant's work (not the fact of employment itself) brought about an aggravation or acceleration of his endogenous depressive state. Once the Tribunal had so decided, the fact that other circumstances outside the employment might on other factual situations have also caused an aggravation of the depression was of course irrelevant.

3. It would, as Davies J held in Westgate, be an error of law to say that there can be no liability on the part of the Commonwealth merely because there is nothing unusual about the nature or conditions of the employment which the injured employee undertakes if circumstances in the employment contribute to the illness or its aggravation or acceleration. As Davies J makes clear, under the present legislation it is no longer necessary for an employee to show that the aggravation or acceleration of the disease was due to the particular nature of the employment. But it does not follow from that that employment seen as a fact in itself, seen as a part of life as it were, necessarily can give rise to a right to compensation to someone with a bad back.

4. In my view the acceptance of Dr Chan's evidence in the form to which I have referred did not involve an error of law.
   Other Evidence of the Respondent

5. Among the other evidence of the respondent which presumably was comprised within the category of "strong and positive evidence" to which Mr McMahon referred in paragraph 20 of his Reasons was the evidence of Dr Tomlinson. This evidence was replete with comments about "complaints of pain" which it was said suggested that Dr Tomlinson had not accepted that the applicant was telling the truth about the pain which he suffered. It was submitted that for the Tribunal to accept this evidence was to reject the applicant as a witness of truth whereas the acceptance of the applicant as a witness of truth required the rejection of this evidence.

6. It is not clear whether Mr McMahon considered this evidence in coming to his conclusion. Rather, it seems that Mr McMahon relied substantially upon the evidence of Dr Chan. I am not satisfied that the acceptance or otherwise of Dr Tomlinson's evidence constituted an error of law by Mr McMahon. In particular Dr Tomlinson was a surgeon and was of the opinion that there was no residual orthopaedic disability of the applicant following his accidents, inter alia, in 1983. The applicant, so Dr Tomlinson said, had no clinical sign of any orthopaedic disability. This conclusion does not seem to require a consideration whether or not the applicant's pain was real or imaginary. If Dr Tomlinson's evidence had been accepted the conclusion would perhaps have been that the applicant was not permanently incapacitated at all yet clearly Mr McMahon accepted that he was. It is for this reason that I doubt that the learned member accepted the evidence. But if he did, there was no error of law involved.

7. It was conceded by counsel for the respondent that if I were of the view that the appeal should be allowed and the matter was then to be remitted to the Tribunal for further consideration it would be appropriate that that reconsideration take the form of a further hearing of the matter with fresh evidence being adduced. Accordingly, the order of the Court will be that the appeal be allowed, the decision under appeal be set aside and that the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with the hearing of further evidence. The respondents should pay the costs of the appeal.