Haigh and Comcare
[2004] AATA 752
•18 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 752
ADMINISTRATIVE APPEALS TRIBUNAL N 2002/542; N 2003/1717
GENERAL ADMINISTRATIVE DIVISION
Re: Peter Evan HAIGH
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member
Date: 18 June 2004
Place: Sydney
Decision:The tribunal as presently constituted disqualifies itself from further hearing this application.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2004)
CATCHWORDS
Workers Compensation – nature of applicant’s employment duties – relationship between employment duties and aggravation of degenerative cervical, thoraco-lumbar and lumbar spine conditions – application to give evidence in reply regarding nature and extent of duties while employed by Commonwealth – comment by tribunal regarding weight such evidence would be given – application that tribunal disqualify itself due to a reasonable apprehension of bias – tribunal disqualifies itself.
Khadem v Barbour (1995) 38 ALD 299
Johnson v Johnson (1999-2000) 201 CLR 488
R v Watson; ex parte Armstrong (1976) 136 CLR 248
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Re JRL; ex parte CJL (1986) 161 CLR 342REASONS FOR DECISION
P.J. Lindsay, Senior Member
Dr M.E.C. Thorpe, Member
1. Peter Haigh’s application to the Administrative Appeals Tribunal under the Safety, Rehabilitation and Compensation Act 1988 is part heard. He has applied for review of decisions by Comcare denying liability for compensation for a back condition, a leg condition/ankle condition, a shoulder/arm condition and a neck condition, and denying liability for permanent impairment because he does not suffer from a compensable injury.
2. At the hearing Mr S Smith of counsel appeared for the applicant and Comcare was represented by Mr B Dubé of the Australian Government Solicitor. The applicant has given evidence and been cross-examined and re-examined. On the first hearing day, Dr D Maxwell, orthopaedic surgeon, and Dr N McGill, consultant rheumatologist, were called by the respondent and gave oral evidence. We heard evidence on the second day from Dr J Douglas, orthopaedic surgeon, who was called by the applicant. Mr Smith then made an application for the tribunal, as presently constituted, to withdraw. In making his application, he submitted that there was an apprehension of bias on behalf of the tribunal arising from comments made by the tribunal as to the weight it would give any further evidence in reply that the applicant would give concerning his activities as a furniture removalist.
3. The background to the application is as follows. Mr Haigh was born on 4 January 1943 and began employment with the Department of Administrative Services (the Department) on 23 December 1985. Later he transferred to the Australian Taxation Office in September 1993, where he remains an employee. As the application concerns comments made during the hearing, in order to gain some appreciation of the context in which the comments arose, it is necessary to set out some passages from the transcript in detail.
4. The applicant’s evidence in chief describing his duties while employed by the Department was as follows:
In terms - if I can just stop you there, it is the case, is it, that your duties entailed the packing of goods into crates? --- Correct.
The loading of both crates and furniture which wouldn't fit into crates into trucks? --- That's right.
The unloading of those trucks and crates at the other end? --- That's correct.
The subsequent unpacking of crates, establishing those goods within the new household? --- That's correct.
All right. In terms of the packing, back in 1985 what were the receptacles? What were the things you used to carry goods which were packed? --- The normal household we packed in cartons, in big thick heavy cardboard cartons and tea chests for the heavier items such as the big crockery, the books, linen, glassware, you know, cutlery, knives and forks pots and pans. All that had to be packed into cartons. Then they had to be transported and unpacked plus the stuff put back into the cupboards.
How much would one of these tea chests, for instance, packed with these heavy goods, what would you estimate the weight of one of those would be? --- Well, I suppose if we packed it it would probably range between 20 and 30 kilos but if an owner packed it, they didn't realise the weight of it, they would fill them right to the top. If we didn't have enough boxes to break it down we would have to move it. Sometimes it took up to two of us to carry one box.
On a regular basis, what would have been the heaviest weight you would have been lifting by yourself in relation to those cartons or tea chests? --- I suppose 50 kilos, I suppose. Maybe a little bit more. I didn't really weigh them.
5. In cross-examination Dr McGill was asked to assume that the applicant’s employment by the Department involved frequent lifting of very heavy objects weighing over 50 kgs. A number of questions followed:
All right. In terms of the extreme physical sort of jobs that you are talking about, you say the requirement to lift weights is a factor? --- I guess in that example is the example of someone who is a weight lifter.
Yes? --- Yes, so we are talking of extreme weights here.
So a person lifting heavy weights, that is the sort of occupation where you couldn't say that you could conclusively, or that you could rule out a correlation between that sort of occupation and the occurrence or the aggravation of degenerative changes? --- Yes, I think that's reasonable, yes.
A person who has to frequently and repetitively bend? --- No, for bending, which is an activity which is performed by a lot more people and so the confidence that we can have from the studies that have been done is greater, there is no evidence that repetitive bending leads to increased degenerative change in the back. There is no evidence that I'm aware of.
What about the two combined? So a person who is frequently required to bend whilst lifting or carrying a very heavy weight? --- Yes, well, I guess that you know, my answer would be cautious in terms of what the very heavy weight is. For example, I think if someone had spent a 10-year period lifting 60 kilogram bags of materials as the main part of their job then I would give them the benefit of the doubt that that could increase degenerative change in their back.
If the person is bending frequently and picking up weights of less than 20 kilograms, then we don't have any evidence that that increases it and it is a frequent enough activity that we would expect to have evidence affect people.
What about, doctor, if they are frequently bending and picking up or lifting and carrying weights in excess of 50 kilograms? --- Yes, well, I think that as I just mentioned, there we have an instance where I don't know of any data to demonstrate that that increases degenerative change but that is a sufficiently rare circumstance in terms of studies, in terms of people doing that, that I don't think that has been excluded.
Thank you. So, is that one of those instances where as you say you give them the benefit of the doubt? --- Yes, well the accent I just - it can be, you know, so, not as an occasional lift on that but if someone was doing that as their major task on a repetitive basis over a number of years, I would give them the benefit of the doubt, yes.
What about a person who in company with others, is required to lift extremely heavy objects, things like safes, very heavy office furniture, fridges, as part of their job as well as lifting, routinely by themselves weights in excess of 50 kilograms? --- Well, you know, the evidence is best if someone actually has a discreet injury while doing that. You know, the impression - my answer is that at the extremes, I think there is doubt.
And that is the sort of - the scenario that I have just outlined to you in terms of the duties of the job, you put that at the extremes? --- Well, yes, actually. Say someone was a house-mover and was doing that task, you know, over years lifting very heavy weights, I think there is a doubt there, yes. I am not aware of any data to support the suggestion that lifting increased frequency of degenerative change but I think that is quite possible. Well, I think that is possible.
And such a person, that is a person that you would give the benefit of the doubt in relation to the connection between their degenerative changes and their employment? --- Yes but I would want to hear the whole story. I would want to know that person's case, what other things had happened, whether there had been specific injuries that could have been relevant.
I assume there were no specific injuries but just this course of work that I have described to you, frequent lifting of weights in excess of 50 kilograms? --- How many times a day would the person be lifting in excess of 50 kilograms?
We are talking about, doctor, someone who for instance, works in the furniture removal business so that - - -? --- Yes but how many times a day? mean, if you can just give me some ideas of numbers, I can give you an idea, you know, what my guess would be at the end. Lifting 50 kilograms how many times a day and roughly for how long?
Yes? --- And what period of time.
6. Mr Dubé then made the following objection:
MR DUBE: Senior Member, before that question is answered or asked, just in terms of this repeated lifting of 50 kilograms, my notes on the evidence aren't that it was repeated lifting, it was that the heaviest lift was 50 kilograms.
MR LINDSAY: Yes, I would like you to clarify that Mr Smith. My note is that:
I lift it by myself up to 50 kilograms but I didn't weigh them so there is no certainty as to the weight.
That is point 1, Dr McGill. The other point is, there is no evidence as to frequency of lifting in his own estimate up to 50 kilograms either alone or with others.
MR SMITH: Yes. Would you just excuse me for one moment and I will seek some instructions.
MR LINDSAY: It is going to be a bit hard to do this by way of instructions I would have thought, Mr Smith.
MR SMITH: Sir, it might be a question - - -
MR LINDSAY: I mean, that is the evidence, unless you have a contrary indication in your notes. You have heard what Mr Dube believes is the evidence, you have heard what I have said I took down. Just to repeat. He lifted up to 50 kilograms himself. I thought he also said he used to lift tea chests, 20-30 kilograms and occasionally - well, not occasionally - he would lift it by himself up to 50 kgs but he didn't weigh them so he wasn't sure.
MR SMITH: Yes.
MR LINDSAY: But there is no suggestion it happened frequently.
MR SMITH: He also said if I recall the evidence, sir, that there was a policy that they weren't to lift in excess of 80 kilograms by themselves, so perhaps - but it might be something that requires evidence in reply from the worker in due course but to establish the basis that I am putting.
MR LINDSAY: Well, that is an issue that we had McGill available now, we don't have the benefit of that evidence.
MR SMITH: I will seek the instructions in relation to that matter and hopefully produce that evidence later on.
Without seeking an adjournment, Mr Smith briefly discussed the matter with his client who had been in the hearing room while the expert evidence had been given. Mr Smith then said:
MR SMITH: Doctor, can I ask you to assume that the lifting of that weight of around 50 kilos would happen 30-40 times in the course of a four hour lifting? --- 30-40 times over four hours, yes.
and he proceeded to ask further questions of Dr McGill on the basis of this assumed scenario and without further objection by the respondent. Mr Smith did not ask to recall the applicant prior to continuing with cross-examination nor did he do so prior to calling Dr Douglas.
7. In the course of giving his evidence in chief, Dr Douglas was asked by Mr Smith to assume that the applicant “ … was engaged in the period from 1985 till approximately 1989 [and] was involved in the relocation of furniture of senior public servants and judicial officers, that as part of those duties he was required to lift weights in the order of 50 kilograms on a basis of about 30 to 40 times in a period of about 4 hours?” Mr Dubé did not object to the question.
8. Subsequent to Dr Douglas completing his evidence and prior to the applicant calling Dr G Mahony, orthopaedic surgeon, Senior Member Lindsay informed Mr Smith that the tribunal was not being assisted by questions to medical specialists that were not consonant with the applicant’s evidence:
MR LINDSAY: I think there are at least two witnesses now, we have made them assume that the applicant worked for 4 hours a day lifting over 50 kilograms and that is not the evidence that has been received. We feel as though that is not going to help matters to have what is essentially a hypothetical response to a hypothetical set of circumstances. So if we could refrain from putting that type of hypothetical question to Dr Mahoney, we would be pleased.
MR SMITH: One thing, sir. I propose - it was perhaps not as clear as it could have been in the worker's evidence initially but I have taken instructions in relation to the matter and I propose to lead that evidence in reply. I would say it is permissible as evidence in reply because Dr McGill for instance didn't make any, it seems, particular assumptions or does not really address at all in the course of his report the issue of the work at the Department of Administrative Services and what effect that might have.
So he now gives an opinion about matters pertaining to the work at the Department of Administrative Services and therefore that forms part of the respondent's case. He makes comments, I would say ambiguous comments, about what you can say about the connection between the work at the Department of Administrative Services and the degeneration or the acceleration of degenerative changes in Mr Haigh's spine by reason of a particular factual scenario. So it is open to the applicant in evidence in reply to establish the factual basis of that scenario which was put to the doctor.
MR LINDSAY: What do you mean by evidence in reply? We've heard his evidence and that is that he said - we briefly touched on this yesterday and I don't profess that what I'm giving you is a verbatim account but he talked about packing of cartons and the weight of the tea chest was 20 to 30 kg and he lifted by himself up to 50 kg and then he added: but of course I didn't weigh them.
MR SMITH: Yes.
MR LINDSAY: Now, that is it and there was no other evidence that I'm aware of and I'm inviting both of you to correct the Tribunal at this stage but the transcript, of course, will establish what he said. So I'm not sure what you mean by evidence in reply. That is the evidence and in terms of the nature and conditions insofar as that relates to lifting and carrying, it certainly isn't 4 hours day in, day out, 50 kg.
MR SMITH: There was also, as I recall the evidence, sir, and again I don't have the transcript of it either, that when he was required to lift these tea chests, very often they would be packed by the people who they were moving and it was the practice of these people to pack them up to the top and in those circumstances they would weigh in excess of 50 kilograms.
MR LINDSAY: I think that is an assumption. I mean, certainly everything up to where you have said, over 50 kilograms, he said that. I don't know how we could assume they are over 50 kilograms merely because they are full of glassware or whatever. It is hypothetical. So that is our main point, Mr Smith, is that a hypothetical question isn't going to help the Tribunal in its deliberations because we are going to get a hypothetical response.
MR SMITH: That is so, sir, but if the applicant subsequently makes out the factual basis which supports that hypothetical assessment, then the Tribunal is entitled to consider the answers given on that hypothetical basis.
MR LINDSAY: How can the applicant make that out?
MR SMITH: Well, the applicant will give his evidence as to what it was that he was required to do.
MR LINDSAY: Sorry, with who, the applicant. We are not proposing to recall the applicant now that he has been in the hearing and he has heard these issues teased out.
MR SMITH: Well, to be fair, sir, and this is why I went to the trouble of taking the instructions before I asked the question yesterday, I have got instructions from my client as to what specifically he would say about his - what his duties were and I put those instructions to the doctor. So it is not a case - it couldn't be said to be a case where the applicant has tailored his evidence to have regard to the doctor's opinion. He has provided - - -
MR LINDSAY: Well, I think at the time we were talking about hypotheticals - and I may have interrupted on this very point at the time - just to clarify on the weights, you know, and the hours involved each day with the lifting and carrying. I think at the time I may even have said: it is not a matter of instructions, it is a matter of evidence and the evidence was in. So I'm still not sure how you are going to somehow add to, vary or contradict that evidence merely by saying you have received some instructions.
MR SMITH: I say, sir, that I'm entitled to take the evidence in reply because it addresses issues which have been raised by Dr McGill, in particular.
MR LINDSAY: What evidence in reply? What do you mean?
MR SMITH: I mean, the doctor - - -
MR LINDSAY: Do you mean recalling the applicant?
MR SMITH: Yes.
MR LINDSAY: Well, I think I've just ruled on that and said he was present here and it is not - he knows that there is an issue because I raised it at the time with Dr McGill that there was this question about lifting and carrying and weights. Had he not been in the hearing room, we might have come to a different point of view but he has been present.
MR SMITH: Well, sir, it was on that basis that I took instructions from him before I ever asked the doctor any question about lifting of weights of 50 kilos and it was specifically on that basis because as you quite rightly say, it is of no assistance for me to ask the doctor questions and then turn to my client on a certain basis and then work out with my client later on that what I've been putting has no basis whatsoever. So I establish by reason of his instructions that the basis of what I put to the doctors - and I would submit I'm entitled then to take his evidence to establish the factual basis of what I put to the doctors - because it arises from my friend's case.
MR LINDSAY: Why didn't you raise that then at the time. You have not - sorry - until I've brought the matter up again with you now, you have not adverted to the possibility that he is going to be recalled. So he may have been sitting in here while you again have gone through these hypothetical scenarios with Dr Mahoney and that wouldn't have helped us at all. I don't know how it clarifies the matter by you saying you took instructions from him.
MR SMITH: Well, as I apprehend your concern, sir, is on the basis that my client's evidence might somehow have been tainted by his having sat in and listened to the evidence of the doctors about the importance of this issue of lifting of a weight of 50 kilograms. But in my submission, the factual basis that I put to the doctors in this hypothetical scenario has always been maintained, that is lifting of weights of 50 kilograms, 30 to 40 times in a 4 hour period.
MR LINDSAY: Well, that is not in the evidence.
MR SMITH: No, I appreciate it is not in the evidence to date, although certainly the evidence such as it stands indicates that there is repetitive lifting in the course of the work of weights that must be in excess of 50 kilograms such as fridges, grand pianos, book cases, wardrobes and also the work is evidence that he would, on a regular basis, have to carry tea chests weighing 50 kilos or more. But that specific factual aspect is not in the evidence as yet but I say I am entitled to lead it in reply because the plaintiff, given that Dr McGill hadn't considered at all the work in the Department of Administrative Services, it is not for the plaintiff or the applicant, I should say, to take a bit of a hypothetical stab at what Dr – or take a bit of a guess at what Dr McGill's opinion might be based on certain matters.
Then lead that in evidence initially and then wait and see what the doctor says. The applicant is entitled where the doctor's opinion is posited on certain assumptions and those assumptions - or that evidence is taken in the defendant's case. The applicant is entitled in evidence in reply to adduce evidence both ways to adduce evidence to support the factual assumption the doctor makes or to reject it. For instance, if Dr McGill had given evidence and said: well, look, I think because Mr Haigh only ever lifted 22 kilo, that was the assumption on which I base my opinion.
When a man does not do any more than lift 22 kilos, then he can't possibly get degeneration of his spine by reason of that work. Then it is more than open to the applicant to take evidence in reply from Mr Haigh's to say: no, I returned to work, lifted 40, 50 kilos and therefore to destroy the basis of the assumption which Dr McGill has made and to undermine his entire evidence on that point.
MR LINDSAY: I don't think that was ever put to him. So the scenario that you have just put isn't germane to what transpired yesterday.
MR SMITH: No, but it is a demonstration of the principle that where Dr McGill gives evidence based on a particular assumption, the applicant is entitled to call evidence to either corroborate the assumption which the doctor works on in giving his opinion or to destroy the assumption that the doctor works on in giving his opinion.
MR LINDSAY: That opinion of course was elicited in response to your questioning.
9. At this point Mr Dubé was invited to comment:
Mr DUBE: … So I think I have an issue with now having had the applicant sit here for the last two witnesses on this issue, clearly he knows what the issue is going to be if he is called to give evidence. I think the weight that the Tribunal could attach to any further evidence he is going to give would be very insignificant. He knows precisely what the point is going to be. I also have a slight difficulty with my friend's statement that he is entitled to call this evidence in reply because it is our case.
Their whole case has been that he was involved in heavy lifting with the Department of Administrative Services. It is not like we have come out and said, this, you know, this is our case. We have been responding to their case, the degenerative conditions were caused by the heavy lifting. The failure to call that evidence initially I don't think is something that can be rectified by allowing the applicant back into the box to re-explain himself, having heard Dr McGill quite clear evidence on how much would be necessary to have lifted to get to the possibility of what Dr McGill thinks might create degenerative conditions.
If my friend really had had a concern at that stage, he should have had the applicant leave the room for the remainder of Dr McGill's evidence and the applicant shouldn't have been present when Dr Douglas gave evidence this morning.
MR SMITH: Sir, there are a couple of aspects with that. I don't dispute the fact that to date no evidence has been given that the applicant would lift weights of 50 kilos, 30 to 40 times over the course of the 4 hours. But it is not as simply as saying that our case has always been that the work at DAS has aggravated the degenerative condition. It is not until Dr McGill, who previously has not addressed the issue, gives the evidence of the significance of the particular weight and the frequency with which it is lifted, that that evidence or that issue becomes germane to the Tribunal's considerations.
I would dispute that there can be any suggestion of any taint on the part of any evidence that the witness gives subsequently because - and I was very explicit about this and very careful about it - I took the instructions before I put the question and the question has not changed in the course of any of the evidence given from any doctor. In my submission, it is manifestly unfair in circumstances where the Tribunal was reluctant to allow me to obtain the instructions to then say: well, because you didn't take the worker outside and get instructions, we are now not going to give you the opportunity to put those instructions to him - to any of the doctors, and we are just going to disregard any aspect of that evidence.
If that was the Tribunal's concern, particularly if that was my friend's concern, he should have raised it at the appropriate juncture and said: let us not have any of this, let us have an adjournment so that we can deal with it on that basis.
MR LINDSAY: Well, you say that it is a matter of instructions but can you clarify what you mean by that? I mean, I made the comment that there was no evidence along the lines of the hypothetical scenario that you had put to Dr McGill and then you said: I want to get some instructions. I'm not sure exactly what you said thereafter, so you can fill in the gaps, but you can't now say: look, let us clarify a lot of this evidence and recall the man.
The man knows what Dr McGill's view is and that is now critical in relation to his opinion evidence based on the Sambrook Study and the Viner Study and I think the applicant is fully aware of that. So to allow him now to give evidence, well, I'm not sure what weight we could give to it. I accept that submission from the respondent. There would be, you know, very little weight would be given to it.
MR SMITH: The Tribunal in those circumstances, sir, puts the applicant in an impossible position because this issue, the pertinence of this issue, particular issue of the extent of the weight which the applicant lifted in the course of his work only becomes of relevance in the course of Dr McGill's cross-examination. Dr Maxwell does not refer to the issue of weight as being relevant and Dr McGill does not give any consideration whatsoever in the course of his report to the work done at the Department of Administrative Services.
MR LINDSAY: Sorry, he does not give any - - -
MR SMITH: He does not give any consideration of it at all in his report, sir. All he talks about in his report, he takes a history - his history in relation to Administrative Services is - this is at page 2:
He joined the Department of Administrative Services, he drove trucks throughout Australia over about a 3 year period. He later became a transport inspector. In this role he would sit beside the driver of a truck to check the rules were obeyed. He would often go on quite long journeys and then be flown home after completing his report.
It then goes on to give his history of the work at the ATO. In the course of his opinion, under the heading of "Summary", he says:
There is no injury arising out of or in the course of his employment with the Australian Taxation Office.
That is all he says about any of the work that the applicant has done in the course of his life.
MR LINDSAY: Look, I don't doubt that it is something that you may wish to put and you wanted to put to him in cross-examination, the contribution of the DAS work, indeed the contribution of his own contract work for 9 years, the work for Grace Brothers and the work for the other organisation, all of that. I don't doubt that you would want to put questions to him about that. The fact is, however, you have asked him to assume something which is not the evidence that we took and heard yesterday.
I don't know how you can contradict that point. So unless you can assist us on that very point, then Mr Smith, I think it is time to progress with Dr Mahoney and if you could please refrain from asking the hypothetical question, then we would benefit if you do that.
MR SMITH: Well, sir, I think it is an important issue because - that we need to thrash out now rather than do later on. If it is the Tribunal's position that an issue about which evidence has been given by one of the defendant's doctors in cross-examination, the importance of which is not apprehended by any party prior to that evidence being given because it is simply not raised by any doctor, if it is the Tribunal's position that the - - -
MR LINDSAY: Let us be clear. What is the thing that wasn't raised by any doctor?
MR SMITH: The importance of the weight which Mr Haigh was required to lift on a frequent basis in the course of his duties with the Department of Administrative Services.
MR LINDSAY: The occupational study, that is what Dr McGill focuses on, the occupational study and there's no correlation.
MR SMITH: Yes. Well, quite so. What his opinion is, I've seen this study, it is an important part in me formulating my opinion but I also – but my view of the study is that when we are talking about people who are doing extremely heavy work, I don't think the study can really tell us the answer as to whether or not that sort of work can advance the degenerative changes. In a situation like that, I would be prepared to give the benefit of the doubt to a person who came to me with advanced degenerative changes having - or this extreme heavy lifting work and accept that there is a connection between the two.
MR LINDSAY: Two points about that, Mr Smith. One, based on the hypothetical evidence. Secondly, I think in re-examination it was put to Dr McGill: is that a question of possible or probable. By that I understood the question and answer to be, there is no doubt occupational activities have no impact on degenerative change. However, extreme lifting of the kind that Dr McGill described, I'm not prepared to say wouldn't have an effect as a matter of possibility.
He didn't say it was probably that somebody with that type of work would therefore have a contribution to degenerative change. So I make those two points.
MR SMITH: We then come to this position, sir. At the conclusion of the case, let us assume - and it has to be an assumption at this stage till we hear the evidence - but let us assume that all of the doctors who are called to give evidence on behalf of the applicant say, well, firstly they all say, I think, furniture removalist work can have an affect. If it is their evidence that frequent or repetitive lifting weights in the order of 50 kilograms makes it even more probable. You then have this position.
You have five - or four of what I would submit to be respected surgeons, orthopaedic surgeons, and a treating rheumatologist who all give the same opinion. You have one doctor, one rheumatologist qualified by the defendant to say: well, I would give him the benefit of the doubt, or I wouldn't say that it is not possible. In my submission, in those circumstances, the weight of the evidence favours the proposition that the heavy work is a factor which aggravated the condition. We are talking four doctors to one and the one doctor, I would submit, could only be assessed as being a half because he is not saying, it just can't happen.
He is saying: well, there's got to be some doubt about it. But returning to your original question, sir, I say if in the course of the defendant's case an issue becomes of importance to the determination of the case and the importance of that issue is not discernible prior to the - in this instance - prior to the applicant having given his evidence, then as a matter of fairness and I don't have the cases here but if it will assist you, sir, I can undertake some inquiries and have them for you for the next time.
MR LINDSAY: But Mr Smith, the applicant gave evidence about his work activities.
MR SMITH: Yes.
MR LINDSAY: That is a fact.
MR SMITH: Yes.
MR LINDSAY: Thereafter you have asked a doctor, two doctors, to assume some evidence. It may well be that there will be four doctors who will say that heavy work can aggravate the condition. The hypothesis that you are putting that the man did X for this number of hours for this many days isn't in evidence and for that reason, it is hypothetical and for that reason I'm going to say at this point if you want to call Dr Mahoney, can we call Dr Mahoney now and we can have this discussion continue later.
But it is not going to change that decision that I've just made and that is that there will be no benefit - sorry, I withdraw that.
There won't be much weight we can put to his evidence, in fact, for the reasons that I've said and you had ample opportunity to ask him fully in your evidence-in-chief, to ask him about his activities, to go up to check with him and re-check with him the nature of those activities, the waits, the number of hours involved, because it is both weight and hours that is asked to be assumed by the doctors. The applicant didn't give that evidence.
You had that opportunity and now to recall the applicant after his hearing - what passed from this side of the room to you yesterday while we had Dr McGill giving evidence, will have to be given extraordinarily little weight.
MR SMITH: Well, sir, in that circumstance I may have to make an application because if it is the Tribunal's position that, irrespective of what evidence the applicant gives from this point on, they will give little or no weight to it.
MR LINDSAY: On that point.
MR SMITH: Yes. In circumstances - - -
MR LINDSAY: Why would - - -
MR SMITH: In circumstances where I took - and I would hope that the Tribunal would accept as an Officer of the Court that they can take my word on this - the evidence that I will adduce from the worker is exactly in accordance with the instructions which I obtained and those instructions were obtained before the issue was raised with Dr McGill.
MR LINDSAY: Well, I think it was raised at the time - my recollection - I don't have the transcript - is that you wouldn't have sought those instructions but for me raising a question with you.
MR SMITH: All right.
MR LINDSAY: So let's be clear on the timing.
MR SMITH: The issue had been raised perhaps in its most preliminary form and once I apprehended that there was going to be some significance to the matter I sought those instructions and the questions I've asked have maintained the basis of my instructions ever since. Now, my friend didn't at that point make any objection, either to me obtaining those instructions, putting those questions to the witnesses, nor did he make any application or suggestion, nor did the Tribunal for that matter, that my client should sit outside for the remainder of the proceedings, so that he couldn't hear the evidence of the doctor's.
If it is now the position that the Tribunal says: well, we are not going to give any weight to the evidence of the worker because he sat in and no one has, up until this juncture, raised a concern about his having sat in and listened to the evidence, in my submission, that puts the applicant in an impossible position. There is also in my submission, sir, there has to be a concern on the part of the applicant that it is quite open when I take the evidence in reply for my friend to explore the credibility of the evidence and it is quite open for him to test the veracity of the witness on this point, including with the issues that you have raised about his sitting in Court, albeit, as I say that no one has bothered to raise them with him up until this point.
Now, for the Tribunal to take the position and say, without having heard that evidence that they are going to give it little or no weight, in my submission, there are matters in relation to that determination which I need to raise with my client in terms of him getting afforded natural justice, so if it is the position - that is the position of the Tribunal, I think it is only proper that I seek instructions in relation to that matter.
MR LINDSAY: You have heard what we have had to say.
MR SMITH: Thank you.
MR LINDSAY: You can get instructions on that point.
10. Before receiving those instructions Mr Smith expanded on his concern as follows:
MR SMITH: In my submission it raises a significant concern that my client should have a reasonable apprehension of the bias of the Tribunal, if they say: well, I'm not going to give your weight on this point any evidence without even having heard the evidence, without having heard it being tested. I hope the Tribunal doesn't take as offensive, I don't mean it to be offensive and I don't suggest that what the Tribunal actually has is bias, but you would understand, sir, the importance or principle behind it, which is that it is the apprehension of bias which is the important element, not whether in fact bias exists, so that if my client is put in a position where he says: well, I'm going to give evidence to the Tribunal, and the Tribunal says: well, we are not going to give it any weight, before we've even heard it.
MR LINDSAY: Well, I can't add to what we said before.
MR SMITH: Yes.
MR LINDSAY: The applicant was present so if he gives the evidence the weight that is given to it will be a lot less than otherwise might have been.
MR SMITH: Yes.
…
11. Mr Smith received instructions to make an application that assumed the tribunal would entertain re-calling Mr Haigh to give evidence and thus the tribunal should disqualify itself having regard to the tribunal’s comments regarding the weight it would propose giving the applicant’s evidence in reply as to his activities as a furniture removalist for the Department from 1985 to 1989.
MR SMITH: Sir, I can indicate that I do hold instructions to make that application and I can really put it on no better terms than what my own client has said to me in response to my advice, which is - I am happy to go back in the box, but if they are not going to listen to me, then what is the point? And that is it in a nutshell. My client is entitled to expect that in evidence he gives before the Tribunal, the Tribunal will bring an impartial and open mind to the giving of his evidence and consideration of the evidence and the weight that should be attributed to it in making its determination. In circumstances where the Tribunal has already indicated before the worker is given the evidence that it will give little or no weight to that evidence, in my submission, that is ample to ground a reasonable apprehension on the part of my client that there is some bias on the part of the Tribunal.
MR LINDSAY: Thank you, Mr Smith.
MR SMITH: I say this, there is also a question of the procedural fairness in that my friend says it is not open to the respondent to tell us how to run our case, or what we should or shouldn't be doing with the worker in getting these instructions, but it will be the basis, I understand the respondent will pick up the matters that you have raised, sir, in seeking to impugn the evidence of the witness and say: well, he was sitting in Court whilst the doctors gave their evidence. Now, it is not open to any party, or the Tribunal if they have concerns about the way in which the evidence is generated, to not raise that, to just leave the applicant to garner the evidence in the way it is and then say later on: well, that is wrong, you shouldn't have done it that way, and on that basis we are not going to give it any weight.
MR LINDSAY: Does the respondent wish to be heard?
MR DUBE: Senior Member, I think I understand that my friend is seeking the Tribunal to excuse itself from hearing the rest of this matter. I have to confess that my knowledge of the procedures on this issue is a little bit rusty and before the Tribunal would make such a decision I would ask that we be given perhaps a bit of time, firstly, to review the transcript and, secondly, to make some submissions on whether the Tribunal as a matter of law should just simply excuse itself, or whether it can make a decision that it should proceed to hear the rest of the matter. My significant concern in the Tribunal just simply agreeing to do that is that we have already incurred significant costs in having a day and a bit of hearing, to just simply agree to that request, we would say we would at least like the opportunity to look into making some submissions on what the Tribunal should be doing on that.
MR SMITH: I'm sorry, sir, I'm just collecting my thoughts while I go. I'm not sure if my friend's concern is as to the power of the Tribunal to disqualify itself, or whether the basis of the application is made out. If it is on the basis that the application is made out we rely primarily on the comment that you made, sir, perhaps 15 minutes ago and so my friend – I understood the comment to be: we will give the worker's evidence little or no weight. I don't know if you, sir, would characterise it as being a comment different to that, but it is on that basis that we make the application. I think that is fairly stark and no review of the transcript is going to assist in the clarification of the comment made by yourself.
12. In written submissions, the respondent referred to Khadem v Barbour (1995) 38 ALD 299 where an application was made for a member of this tribunal to disqualify himself on account of comments made during the course of cross examination of the applicant. The member refused the application. On appeal to the Federal Court, however, the application was successful. Hill J’s judgment emphasised the importance of the context of the substantive application being heard by the tribunal. There, it involved a default assessment of income tax based on undisclosed amounts of income including cash payments, undisclosed wages and interest. Whether the applicant’s submission that he did not have undisclosed sources of income would ultimately succeed, would depend on his credit. Hill J noted that the member’s comments would suggest to a reasonable observer that the member had made up his mind and hearing further evidence from the applicant and members of his family would not change it.
13. In the instant application, Mr Haigh’s case, as outlined in opening by Mr Smith, is that his work as a furniture removalist while employed by the Department from 1985 to 1993, but in particular the period to 1989 when the work was exclusively of a physical nature, aggravated a degenerative condition in his cervical, thoraco-lumbar and lumbar spine and accelerated the onset of symptoms. Support for this submission was found in the opinions of Dr Mahony and Dr L Reiter, the treating rheumatologist. Due to constraints on the availability of the specialists, evidence was taken in the respondent’s case from Dr Maxwell and Dr McGill prior to the applicant calling Dr Douglas and Dr Mahony. In cross examination, Dr Maxwell was asked whether he was aware of a condition colloquially referred to as ‘shearer’s back’ and whether he agreed that physically arduous activity over long periods of time required by certain occupations tends to wear out joints in the spine. Dr Maxwell’s answer was that he did not believe such a correlation had been documented in studies. Dr McGill was cross examined along similar lines and he gave evidence to much the same effect as Dr Maxwell, but in addition referred to a study by Sambrook, McGregor and Spector that supported this view. Cross examination progressed and Mr Smith asked Dr McGill to assume that the applicant’s work for the Department involved certain features; ultimately Mr Dubé objected to the line of questioning [as set out in par 6 above].
14. An issue for decision in this matter is whether Mr Haigh did undertake furniture removal work from 1985 to 1989 that involved lifting objects weighing around 50kg, 30-40 times over a four hour lifting. Since Mr Haigh had commenced working as a furniture removalist at the age of 20 (and was 42 when he started with the Department) the contribution, if any, of that earlier work to an aggravation of his lumbar, thoraco-lumbar and cervical spine conditions would fall for determination. Another issue is whether the work for the Department contributed to an aggravation of his conditions. Although some evidence had been given concerning that work, Mr Smith proposed re-calling the applicant to give evidence in reply regarding that work because he had received instructions that the work involved was intense, heavy and repetitive. The tribunal informed Mr Smith that it was opposed to the applicant being recalled to give evidence since he had been present throughout Dr McGill’s evidence, and if such evidence were to be given the tribunal would afford it very little weight.
15. Mr Smith’s cross-examination of Dr Maxwell regarding ‘shearer’s back’ suggests that the applicant intended to try to establish a link between aggravation of his spinal conditions and the work for the Department. While the applicant and the doctors he qualified may not have been aware of, or simply did not refer to, the study by Sambrook et al., to which Dr McGill referred, the applicant had tried to establish that connection. We are surprised, therefore, that evidence was not adduced from the applicant that would point up a similarity, if one existed, between his work for the Department, and other occupations requiring prolonged periods of arduous physical exertion.
16. Quoted above at par [8] is a comment made by the tribunal regarding the weight that would be given to any evidence in reply from Mr Haigh in amplification of the nature and extent of his work for the Department. That evidence would bear on the comment made by Dr McGill that, at the extremes of physical activity, the possibility that there is a correlation between such activity and progression of a degenerative condition cannot be excluded.
17. While the tribunal acknowledges that the applicant does not submit that there is actual bias on the part of the tribunal, the question is whether there is a real apprehension of bias. By reference to the judgment of Kirby J in Johnson v Johnson (1999-2000) 201 CLR 488, the respondent submitted that the tribunal was upholding impartiality and fairness in indicating that it would not allow the applicant to give further evidence in circumstances where he has heard medical opinion in relation to what this evidence is likely to comprise. We agree with this submission. But the applicant’s complaint is the tribunal’s statement that, if the applicant were recalled to give evidence, it would be given “extraordinarily little weight … on that point”. Thus it is contended there is an apprehension of bias because the tribunal has a preconceived idea of the credit of the applicant in respect of that piece of evidence. The applicant cited the following passage from R v Watson; ex parte Armstrong (1976) 136 CLR 248:
The question is not whether there was a real likelihood that [the trial judge] was biased. The question is whether it has been established that it might reasonably be suspected by fair-minded persons that the learned judge might not resolve the questions before him with a fair and unprejudiced mind (at 264, per Barwick CJ, Gibbs, Stephen and Mason JJ)
18. The tribunal is mindful that a conclusion of a reasonable apprehension of bias should not be drawn lightly (Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 348). We would not be discharging our duty if we too readily accepted a submission based on an appearance of bias because that would “ … encourage parties to believe that seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour” (Re JRL; ex parte CJL (1986) 161 CLR 342, at 352 per Mason J). Moreover, we do not consider that the tribunal’s comments that have led to this application, support such a conclusion. But the test is contained in the following passage from the High Court in Ebner’s case:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
…
Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction on how the judge or juror will in fact approach the matter. The question is one of possibility, (real and not remote), not probability. (at 344-345, per Gleeson CJ, McHugh, Gummow and Hayne JJ).
19. We think it is possible that a fair minded lay observer might apprehend that the tribunal had made up its mind about any further evidence that the applicant would give concerning the physical aspects of his duties while employed by the Department. In essence, the applicant submitted that the tribunal was against him on credit as to this point. That being the case, he would be unable to draw support from Dr McGill’s evidence. In that event, whether the tribunal would find on the balance of probabilities that that work was not related to an aggravation of his degenerative spinal conditions, would depend on a consideration of all the evidence, including that of Dr Mahony which is yet to be taken. Nevertheless, a reasonable and fair minded observer might conclude that the tribunal holds a preconceived view about the applicant’s credit in respect of this proposed evidence and despite not having heard the evidence in reply, would not change its mind about the weight it would give that evidence. There is the possibility, therefore, that the observer would apprehend that we might not approach the final determination of this matter with appropriate impartiality because we have already stated our view as to this aspect of Mr Haigh’s evidence.
20. Accordingly, the tribunal finds that it should disqualify itself from further hearing this matter.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, and Dr M.E.C. Thorpe, Member:
Signed: .....................................................................................
AssociateHearing 13 & 14 May 2004
Applicant’s submissions received 15 June 2004
Respondent’s submissions received 28 May 2004
Decision 18 June 2004
Counsel for applicant S SmithCounsel for respondent B Dubé
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