Fairweather v Australian Postal Corporation
[2009] FCA 1290
•13 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
Fairweather v Australian Postal Corporation
[2009] FCA 1290ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal (AAT) decision on questions of law – AAT affirmed determinations of Australian Postal Corporation that it was no longer liable to pay compensation – whether AAT for the purposes of s 5 of Administrative Decisions (Judicial Review) Act 1977 (Cth) took into account a relevant consideration, and whether for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) the AAT incorrectly applied the Safety, Rehabilitation and Compensation Act 1988 (Cth), failed to consider a submission of substance, and failed to provide adequate reasons for its decisions.
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 29, 37Industry Research and Development Board v Bridgestone Australia Ltd (2004) 136 FCR 47 applied
THOMAS LOUISE FAIRWEATHER v AUSTRALIAN POSTAL CORPORATION
NSD 785 of 2009
MOORE J
13 NOVEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 785 OF 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS JOSEPHINE KELLY, SENIOR MEMBER, AND DR J CAMPBELL, MEMBER
BETWEEN: THOMAS LOUISE FAIRWEATHER
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
MOORE J
DATE OF ORDER:
13 NOVEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.The decision of the Administrative Appeals Tribunal of 3 July 2009 to affirm the reviewable decision made on 10 April 2007 affirming the decision made by the respondent on 20 December 2006 to suspend the applicant's rights to compensation and to institute or continue proceedings because he had refused to undertake a rehabilitation program without reasonable excuse, be set aside.
3.The application to review the decision of 10 April 2007 be remitted to the Tribunal to be determined according to law.
4.The appeal and application otherwise be dismissed.
5.The respondent pay the applicant's costs of these proceedings.
6.The parties have liberty to apply.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 785 OF 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS JOSEPHINE KELLY, SENIOR MEMBER, AND DR J CAMPBELL, MEMBER
BETWEEN: THOMAS LOUISE FAIRWEATHER
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
MOORE J
DATE:
13 NOVEMBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In 2002 Mr Fairweather, the applicant, was assaulted on his way home from work. His employer, the respondent, is the Australian Postal Corporation. As a result of the injuries sustained to his right foot during the attack and an unrelated injury sustained two years earlier he received compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). He received compensation under s 14 for incapacity or impairment and later under s 29 for household cleaning services. During 2006 the respondent made two separate decisions effectively terminating these payments. Applications for internal review were unsuccessful. Subsequent applications to the Administrative Appeals Tribunal seeking review of the decisions were also unsuccessful. In these proceedings the applicant challenges the Tribunal's decisions affirming the decisions.
The SRC Act contains two sections of importance. The first, s 29 creates a liability to pay compensation for household services if, as a result of a compensable injury, the employee obtains those services. The second, s 37 empowers a rehabilitation authority to require an injured employee to undertake a rehabilitation program and also provides that if the employee refuses or fails to do so (without reason excuse) rights to compensation are suspended. In terms, the two sections provide:
Section 29 – Compensation for household services and attendant care services
(1)Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2)Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
a) The extent to which household services were provided by the employee before the date of injury and the extent to which he or she is able to provide those services after that date;
b) The number of persons living with the employee as members of his or her household, their ages and their need for household services;
c) The extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
d) The extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
e) The need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b)
…
Section 37 - Provision of rehabilitation programs
(1)A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
On 13 July 2006 the respondent made a decision that it was no longer liable to pay compensation to the applicant under s 29 for household cleaning services.
On 28 November 2006, the respondent formulated a rehabilitation program under s 37(1) for the applicant. It was common ground that the respondent was a rehabilitation authority for the purposes of s 37. The program specified that the applicant was to work 7 hours per day 3 days a week (Monday, Wednesday and Friday) and 6 hours per day 2 days a week (Tuesday and Thursday). Before the Tribunal the applicant's counsel appeared to concede that the applicant has never worked 33 hours a week since 28 November 2006 in accordance with the program.
On 20 December 2006 the respondent made a decision that it was no longer liable to pay compensation to the applicant, as "[he had] failed to participate in [his] return to work program" as required by s 37 .
The applicant challenges the Tribunal's decisions to affirm, indirectly, these decisions on a number of grounds, relying both on the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth). First, the applicant argues that the Tribunal failed to take into account a relevant consideration for the purposes of s 5 of the former Act, namely that the applicant had begun to undertake the rehabilitation program when the Tribunal affirmed the decision. Secondly, the applicant identifies three errors of law for the purposes of s 44 of the latter Act:
i)the Tribunal incorrectly applied the SRC Act, as it affirmed the decision to suspend compensation after the applicant had begun the rehabilitation program;
ii) the Tribunal failed to consider a submission of substance which was capable of affecting the outcome of the case, namely the submission that the high dosage of narcotics affected the applicant's ability to travel to or undertake the rehabilitation program;
iii) the Tribunal failed to provide adequate reasons for its decisions, namely its findings on material questions of fact.
At the forefront of the applicant's submissions was the contention that the Tribunal erred in law by failing to address a central element of his case. It was that if there had been a refusal or failure on the part of the applicant to undertake the rehabilitation program, it was with reasonable excuse. The excuse was that the applicant was taking, from time to time, a medication which rendered him incapable of driving, his usual means of coming to work. His inability to drive himself to work constituted a reasonable excuse explaining and excusing his failure to undertake the rehabilitation program. Had that argument been accepted then the justification of reasonable excuse for the failure found in s 37(7) would have been established.
This contention raises three issues. First, was the argument an element of the applicant's case before the Tribunal. Secondly, did the Tribunal fail to address this argument. Thirdly, and if so, did this constitute an error of law.
I have read relevant parts of the transcript of the proceedings before the Tribunal. The following emerges. When opening his case, counsel for the applicant adverted to the fact that the applicant had not worked the maximum number of hours included in his rehabilitation program. He identified several matters which, on the applicant's case, explained why the applicant had not worked the hours the program contemplated. Counsel was asked by one of the Tribunal members whether it was his case that for the hours the applicant did not attend the rehabilitation program, he had a reasonable excuse. Counsel replied fairly emphatically that this was so. There was a discussion between the Tribunal and the applicant's counsel about whether it would be necessary for the Tribunal to review the reason, and therefore the excuse, for each day the applicant had not worked or had worked hours less than those contemplated by the rehabilitation program. Counsel indicated he was going to take the Tribunal through sufficient number of days to establish the case. In that context counsel referred to the fact that when the applicant had an exacerbation of his pain he took additional medication and noted that when he did so he was not allowed to or should not drive. Counsel said that this was so if the applicant took "more than 50 mg of oxy-something per day". A Tribunal member volunteered that this was a reference to Oxycontin. As the case developed it was clear that counsel's hesitating and incomplete reference should have been to Oxynorm.
The applicant gave oral evidence in chief for several hours on the first day of the hearing. This was 23 February 2009. When giving that evidence he explained what medications he had been taking immediately before and at the time the rehabilitation program commenced and later. His evidence was that he had been taking medication for a number of years and the clear import of his evidence was that this included one drug, Oxycontin. His evidence was that his dosage of this drug started off at 10 mg and had increased to 50 mg and the frequency of dosage had changed from twice a day to three times a day. His evidence also was that at least for a couple of years he had been taking another drug, Oxynorm, to deal with breakthrough pain. He indicated he was pretty sure he had been taking that drug when he was attempting to return to work in 2006. The initial dosage he took was 10 mg which increased to 15 mg and his evidence was that he was "pretty sure" it was at the increased dosage when he was attempting to return to work. He gave evidence that he probably or "maybe" took it three times a week, three times a day and the frequency depended on pain levels. At this point both the questions and answers appeared to become a little confused about what drugs he had been taking and with what frequency. Obviously it is not my function to make findings of fact on this evidence. It is sufficient to point to the fact that evidence was given which could have sustained findings that the applicant took both drugs and regularly took the Oxynorm, that it was evidence capable of supporting the argument referred to in paragraph [7] above and, it could be inferred, was led for that purpose.
A little later in his evidence, the applicant addressed the effect of these two drugs on his capacity to drive and what he had been advised by his medical advisers about taking them and driving. He gave evidence that he was usually okay to drive when taking Oxycontin though, on one view of his evidence, he said that he had been advised not to do so. However his evidence was that when he also took Oxynorm he could not drive a car. He also gave evidence that he had been advised by his rehabilitation doctor, Dr Faux, and his general practitioner not to drive if he had taken 15 mg of Oxynorm. He again gave evidence about the frequency with which he took Oxynorm, namely about three times a day about three times a week. He gave evidence that if he took the additional morphine-based medication of Oxynorm on a particular day it stopped him from going to work. He also gave evidence that if one of the three days he took it was a work day he would not go to work. In response to a question from the Tribunal, the applicant said he drove to work. He also gave evidence to the effect that he had never gone to work when he had taken the additional medication of Oxynorm because he could not drive. He also said he could not really do anything under the influence of the medication. Again this evidence could have sustained findings that when the applicant took Oxynorm he could not drive to work and could not work, was evidence capable of supporting the argument referred to in paragraph [7] above and, it could be inferred, was led for that purpose. None of the evidence of the applicant I have summarised to this point was objected to and, importantly, was not challenged in cross-examination.
The applicant was cross-examined at great length (for a little over a day) by counsel for the respondent about a variety of matters. He was cross-examined about his ability to drive a car and ride a motorbike but the cross-examination was directed to whether or not the injuries he had suffered to his feet limited his capacity to drive. The cross-examination was not directed to his capacity to drive having regard to the medications he may have been taking. Similarly he was cross-examined about his use of public transport but not whether he was able to use it having regard to his medication. The applicant was cross-examined about having been told by Dr Faux in February 2006 to stop taking Oxynorm and increase the dosage of Oxycontin as a means, it appears, to increase his hours of work. However his evidence about what in fact was his consumption of medication was not challenged. The applicant was cross-examined about his reasons for not attending work and, it may be accepted, he did not raise directly his inability to drive to work having regard to the medications he was taking. However that had clearly been raised by his evidence in chief. In re-examination the applicant gave evidence, without objection, that he was taking quite a bit of Oxynorm in December 2006.
Expert evidence was given by four doctors (of six who gave evidence) which touched upon the applicant's capacity to drive after having taken his medication. Before the doctors gave oral evidence there was a discussion between counsel for the applicant and the Tribunal about the medical evidence and the proposition was put that this evidence was dependent on what the applicant had told the doctor. It was suggested to counsel that if the Tribunal did not believe the applicant then conclusions of the doctors based on the applicant's account might not assist him. The applicant's counsel accepted that in part but submitted that if the Tribunal believed his evidence about the amount of medication he had been taking, it would raise a question of whether he was even capable of going to work, submitting that that was an objective test and part of the reasonableness argument.
The applicant's treating general practitioner, Dr McFarlane, gave evidence. He gave evidence in chief that the applicant would be able to drive on his standard medication of Oxycontin once he had habituated to that dose. However he also expressed the opinion that the applicant should not be driving if he was taking the extra narcotic Oxynorm (15 mg) and that he had told the applicant that he should not be driving. That opinion was not expressed to be based on any history given by the applicant. Dr McFarlane was not cross-examined on this evidence. It was not challenged.
Evidence was also given by the applicant's rehabilitation doctor, Dr Brooke. She gave evidence in chief that the applicant would not be able to drive a motor vehicle when he was taking "this increased medication", Oxynorm. She gave evidence that the effect of one 15 mg tablet lasted six hours. A member of the Tribunal put the following question with the following response:
Q: Isn't the point really, doctor, that if he took that [15 mg of Oxynorm] before he went to work, he couldn't drive, because that is what you have said, isn't it?
A: He couldn't get to work, no.It appears the Tribunal member then said: "So he couldn't get to work. So I think you are up in dreamland at the moment, Mr Richards [the applicant's counsel]." Quite what this meant is unclear. Dr Brooke also gave evidence expressing the opinion that the Oxynorm would affect the applicant's ability to go on public transport saying that it would be quite dangerous. Again Dr Brooke's opinion was not expressed to be based on any history given by the applicant. Dr Brooke was not cross-examined on this evidence. It was not challenged.
Evidence on this topic was also given during cross-examination by Professor Nade, an orthopaedic surgeon of 40 years experience. It was to the effect that a person taking 50 mg of Oxycontin three times a day should not be driving a motor vehicle and that it went without saying that such a person taking an additional dose of Oxynorm (15 mg) should not be driving. This evidence was not objected to and the matter was not explored in re-examination.
The remaining doctor to give evidence about the effect of Oxynorm on the applicant's capacity to drive was Dr McGill, a consultant rheumatologist. He was asked in cross- examination by the applicant's counsel his opinion about the effect of Oxycontin and Oxynorm on the capacity of a person to work and to drive a motor vehicle. His opinion was that it depended on the habitual nature of the use. The people who habitually used it could drive a motor vehicle safely. He was asked that on the assumption a person was taking Oxycontin three times a day and an additional 15 mg of Oxynorm, could that person work, drive a motor vehicle safely and catch public transport. He answered in the affirmative. He did not, at this point, differentiate between habitual and non-habitual use. On one view of this evidence it contradicted the opinions of Dr McFarlane and Dr Brooke. On another view they might be able to be reconciled. That would depend on whether the actual use about which the applicant gave evidence was, for the purposes of Dr McGill's opinion, habitual use or not. There was no re-examination on this topic.
During final submissions, the applicant's counsel observed that, putting Dr McGill to one side, all the medical evidence said that the applicant could not drive or use public transport if he was on Oxynorm. Counsel submitted, in the form of rhetorical question, that if the Tribunal accepted that the applicant was taking Oxycontin why would it not be a reasonable excuse why the applicant could not go to work or that he had to go home. It is not clear whether, in this submission, counsel was confusing Oxycontin or Oxynorm though plainly he was differentiating between the two during the submission. In submissions in reply counsel for the applicant noted that counsel for the respondent had been silent on the question of Oxynorm and Oxycontin and observing, again, that apart from Dr McGill, all the other doctors said it was unsafe to drive. Counsel invited the Tribunal to accept the medical evidence that it was unsafe for the applicant to drive and take public transport and that "would affect the capacity of the applicant to undertake the rehab program".
Having regard to this analysis of the evidence and the submissions, it is clear, in my opinion, that the applicant was advancing, as part of his case, an argument that his consumption of Oxynorm prevented him, on the working days he took it, from driving to work and that circumstance constituted a reasonable excuse for not undertaking his rehabilitation program.
In its reasons for decision the Tribunal identified two issues. It identified the second issue as being whether the applicant had a reasonable excuse for failing to undertake his rehabilitation program. It then summarised the case for the applicant. It made no reference to the argument referred to in the preceding paragraph. The Tribunal then commenced to set out its reasoning leading to its ultimate conclusion to affirm the decision the subject of review. Its first finding was that the applicant's evidence including his complaints of pain, the adverse effect of medication, and psychiatric symptoms, to doctors, his employer, and in evidence before the Tribunal had been grossly exaggerated and therefore was unreliable. The Tribunal went on to say that it did not accept the evidence of doctors whose opinions depended on the reliability of what the applicant had told them. In particular it said that, for this reason, the evidence of Dr McFarlane and Dr Brooke was of no assistance. It later observed that Dr McGill's clinical findings were not consistent with the symptomatology reported and also observed that Professor Nade found that the applicant's symptomatology was exaggerated. At no point did the Tribunal address the argument referred to in [19] above. It made no express findings about whether, and if so, in what amount the applicant had been taking Oxynorm and the effect of that on his capacity to drive. It made no express findings about whether, if the applicant's consumption of Oxynorm prevented him from driving to work and if it did, it constituted a reasonable excuse for not undertaking the rehabilitation program.
Counsel for the respondent submitted in these proceedings that the rejection of the applicant's evidence about the effect of his medication and the rejection of medical opinions based on the applicant's account of his history and experiences should be taken to be a rejection of the evidence about the effect of Oxynorm on a person's capacity to drive. However that evidence was not given in terms which suggested it was based on the applicant's account. It was evidence of medical practitioners about the effect of a particular drug. Neither the evidence generally on this topic nor the expertise of the doctors who gave it had been challenged.
I accept, as I must, that the Tribunal's reasons should not be scrutinised with an eye to error. Due regard must be paid to the fact that in deciding cases such as the present, the Tribunal is not obliged to set out its reasoning in the same level of detail as a court. However if a party advances an argument which is substantial (even if, in one sense, morally unattractive) and directed to negativing what would otherwise be the effect of a statutory provision suspending compensation, then the Tribunal is bound to consider and deal with the submission and if it rejects it, provide some explanation as to why. In the present case there is absolutely nothing that I can discern in the Tribunal's reasons which suggests it considered the argument based on the applicant's inability to drive to work and thus work as his rehabilitation programme required and rejected it. It could only affirm the decision suspending compensation if it had rejected the argument.
Having regard to at least some of the evidence led before the Tribunal, supervisors of the applicant employed by the respondent and those associated with implementing his rehabilitation scheme possibly together with the members of Tribunal may have formed the view that the applicant was an extremely difficult person at best indifferent to the efforts of those trying to rehabilitate him and perhaps even unworthy of any sympathy. The Tribunal may also have found entirely unattractive the suggestion that the applicant's consumption of narcotic drugs to deal with the symptoms it thought were grossly exaggerated could be thought to justify, because it provided a reasonable excuse, his failure to comply with the rehabilitation program. However the SRC Act is beneficial legislation intended to operate for the benefit of injured employees whatever their personal attributes. If in fact the applicant's drug consumption prevented him from travelling to work then a finding to that effect would at least raise a question about whether there existed a reasonable excuse. In my opinion, the Tribunal was under a duty to consider the argument and reach and express a conclusion about it. It failed to address a case of substance advanced on behalf of the applicant and, in so doing, erred in law: Industry Research and Development Board v Bridgestone Australia Ltd (2004) 136 FCR 47 per Tamberlin, Sackville and Selway JJ at [26].
It is unnecessary to address the other grounds seeking to impugn the Tribunal's decision affirming, indirectly, the decision to suspend the applicant's rights to compensation.
I deal briefly with the Tribunal's decision concerning compensation for cleaning services. The only ground challenging the Tribunal's affirming, indirectly, the respondent's decision that it was no longer liable to pay compensation for household cleaning services, was that the Tribunal did not give reasons for doing so. However, as best I can glean from the transcript, the challenge to that decision assumed no real prominence at the hearing before the Tribunal. Whether or not the applicant was entitled to compensation for household cleaning depended upon whether his work related injury limited his capacity to clean himself. As I have already explained, the Tribunal rejected, in fairly robust terms, the applicant's evidence about the disabling effect of his injury. Necessarily this involved a rejection of the contention that his injury prevented him from undertaking household cleaning. Little more was probably required by the Tribunal to indicate its rejection of the applicant's claim that the compensation for household cleaning services should have continued. I am not satisfied that the Tribunal erred, in this respect, as alleged.
I propose to set aside the Tribunal's decision in relation to the suspension of rights to compensation and remit the matter but otherwise dismiss the appeal and application. As the applicant has had substantial success in its appeal, he is, in my opinion, entitled to his costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 13 November 2009
Counsel for the Applicant: D Richards Counsel for the Respondent: P Jones Solicitor for the Applicant: Slater and Gordon Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 22 October 2009 Date of Judgment: 13 November 2009
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