Hanna, N. v Australian Postal Corporation
[1992] FCA 212
•29 APRIL 1992
Re: NAGWA HANNA
And: AUSTRALIAN POSTAL CORPORATION
No. G412 of 1991
FED No. 212
Administative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)
CATCHWORDS
Administrative Law - Commonwealth Employees' Rehabilitation and Compensation Act - appeal from AAT - whether error of law - whether no evidence ground made out - whether decision manifestly unreasonable, perverse or self contradictory - Asioty v Canberra Abattoir and The Commonwealth v Muratore discussed.
Administrative Appeals Tribunal Act 1975 (Cth): s.44(1).
Compensation (Commonwealth Government Employees) Act 1971 (Cth): s.20(4).
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth): ss.19(1), 50(1), 62 and 63.
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574
Waterford v The Commonwealth (1987) 163 CLR 54
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
The Commonwealth v Muratore (1978) 141 CLR 296
Barker v The Australian Telecommunications Commission (1990) 95 ALR 72
HEARING
SYDNEY
#DATE 29:4:1992
Counsel and Solicitors for Applicant: L.T. Grey
Instructed by: Somerville and Co
Counsel and Solicitors for Respondent: R.B. Wilson
Instructed by: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant, Nagwa Hanna ("Mrs Hanna"), appeals to this court from the decision of the Administrative Appeals Tribunal constituted by Ms Jocelyn McGirr (Senior Member), Doctor Howell and Mr Stevens (Members), affirming a decision of the respondent Australian Postal Corporation ("the Corporation") to cease its liability as from 10 January 1989 to pay compensation to Mrs Hanna in respect of a personal injury.
The appeal to this court is by virtue of s.44(1) of the Administrative Appeals Tribunal Act 1975 an appeal on, that is to say limited to, a question of law. The questions of law said to arise in the present case are expressed in the amended Notice of Appeal as follows:
"(a) Whether there was evidence or other material before the Tribunal that would justify the conclusions that:
(i) the incident on 12.4.85 had not caused or aggravated a protrusion of one or more intervertebral discs in the Applicant's lumbar and lumbo-sacral spine; and
(ii) the Applicant was suffering no incapacity after 10.1.89 arising from the said disc protrusions;
(b) Whether there was evidence or other material before the Tribunal that would justify the conclusion that there was no organic reason why the Applicant should not be fit for the full duties of a mail officer after 10.1.89;
(c) Whether there was evidence or other material before the Tribunal that would justify the conclusion that there had been a relevant change in the Applicant's circumstances prior to 10.1.89 that would justify the cessation of all compensation payments from that date;
(d) Whether the conclusions set out in paragraphs (a) to (c) above were so unreasonable that no reasonable Tribunal could come to them.
(e) Whether the Tribunal was obliged to consider whether the Applicant was unfit for the full duties of a mail officer after 10.1.89 as the result of a behavioural disorder arising in whole or part from the incident on 12.4.85, and failed to do so."
The relevant facts
Mrs Hanna was born on 1 April 1955. She commenced work at the Redfern Mail Exchange on 8 May 1978 and was employed as a permanent officer until 12 April 1985. On the evening of that day, while dragging bags of mail and lifting them, she suffered a sharp pain in the lower back and was taken to hospital. She was off work for some two months, returned for approximately two weeks in June 1985 and on several occasions thereafter. She claimed to be entitled to compensation for a back injury under the then provisions of the Compensation (Commonwealth Government Employees) Act 1971. In due course a determination was made under that Act of an entitlement to payment of compensation pursuant to s.45(2).
On 2 February 1989 Mrs Hanna was notified that her right to compensation was to be terminated as and from 10 January 1989. She shortly thereafter sought reconsideration of this decision. On 15 July 1989 she was notified that the decision would not be revoked or varied. The letter giving that notification said:
"It is clear from the evidence that you did have an injury to begin with. However, it appears to have gradually progressed first to being fit for light duties and now fit for full duties. The original determination was based on a report from Dr Eggins on 22.11.88. Where he found you fit for full duties. You were again examined by Dr Eggins on 14.4.89 with supporting MRI reports. The MRI only showed minor bulging but no signs of any disc pressure. Dr Eggins confirmed his earlier opinions. On 16.5.89 Dr Davis examined you and stated that he could detect no evidence of any on going organic disability."
Although Mrs Hanna purported to appeal, both against the decision to deny liability to her and the refusal to reconsider that decision, the parties agree that the relevant decision under review by the Administrative Appeals Tribunal was the failure to reconsider the revocation or variation of the 10 January 1989 decision.
The Tribunal's decisionThe Tribunal affirmed the decision. It set out in its reasons for so doing a summary of medical reports extending from April 1985 to the time of the hearing and it is unnecessary here to make a detailed reference to this material. The Tribunal also summarised, in some detail, oral evidence of medical experts given before it.
In essence, the Tribunal accepted the evidence of Dr Eggins, a General Practitioner working in the occupational health field, that Mrs Hanna's symptoms were not physical but were behavioural. It found the applicant to have been "less than candid with medical examiners" and with the Tribunal. The Tribunal apparently formed the view, from seeing Mrs Hanna in the witness box, that she was an unsatisfactory witness and that her reports to various medical specialists of her disabilities and symptoms had been inconsistent and incomplete. It is obvious enough that those reports, to a large extent, relied upon matters that Mrs Hanna had told the specialists. The Tribunal found, accepting the evidence of a number of medical examiners, that the pain distribution described by Mrs Hanna did not follow a recognised anatomical distribution. This finding was not challenged. It said:
"The Tribunal accepts the views of Dr Tomlinson, Dr Marshman, Dr Alexander and Dr Eggins that the full range of symptoms described by the applicant do not have an organic basis and in so far as the medical reports rely on her subjective accounts of her history and symptomatology, the Tribunal does not accept them."
The Tribunal, still dealing with matters of credit of Mrs Hanna, expressed the view that her sick leave record prior to the accident was incompatible with assertions she had made of good health prior to that time. It said that:
"... her total leave record, together with the evidence of assistance provided by others in the home before and after the 1985 accident, demonstrate a pattern of work avoidance."
It concluded:
"Having considered the applicant's account of her attempts to return to light postal sorting work on a sustained basis together with all the other evidence in this matter the Tribunal does not accept that the applicant's attempts were genuine."
The Tribunal then noted that Mrs Hanna had attended a course from 9.00 or 9.30 in the morning until almost 3 o'clock in the afternoon four days per week and undertaken additional reading and study without significant non-attendance due to illness. It noted evidence that she had made no complaint of pain during periods of clerical work in this course. It then concluded:
"... having considered the whole of the evidence including the applicant's evidence and other evidence of her behaviour since the accident, that the applicant has attempted to demonstrate herself to be fit only for clerical duties four hours per day, as distinct from full time clerical duties or light postal sorting duties. The Tribunal does not accept that the applicant is so limited."
The Tribunal then further discussed expert evidence. It is unnecessary to set this out in detail. Suffice it to say this evidence included an x-ray of the lumbo-sacral spine made in April 1985 which showed no abnormality. It noted that medical examiners had considered her fit for light work on 15 December 1987, for work with some restrictions on 9 March 1988, and that on 22 November 1988 Dr Eggins, who gave evidence before the Tribunal, had examined Mrs Hanna and considered her fit for normal duties. It noted that on 16 May 1989, after examining the latest MRI report of the lumbar spine by Dr Ho, in examining the applicant another doctor, Dr Davis, had concluded that the applicant was fit for normal duties. It concluded that there was a mild broad-based posterior bulge of the L4-5 disc, but concluded that it was non-pathological. It noted the evidence of Dr Marshman that it was possible, but not likely, that that protrusion had been caused by the accident. After considering other matters, the Tribunal then said:
"Having considered all of the evidence the Tribunal does not accept the broad-based bulge of the L4-5 disc was caused by the incident in April 1985. Even should that not be the case, we accept the opinion of Dr Eggins that there is no organic reason for any restriction on the applicant's ability to work. Having considered all of the evidence the Tribunal finds on the balance of probabilities that the applicant was fit for her normal duties as certified by Dr Eggins on 22 November 1985."
Finally, the Tribunal considered two further matters raised in submissions by Mrs Hanna's counsel.
It had been submitted on her behalf that her condition, like the dermatitis in the case of Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533, remained dormant but flared up as a result of work. It abated when she ceased work. It was submitted that the employment should be seen as aggravating the pre-existing condition and that accordingly she was still liable to compensation. This submission was rejected. The Tribunal distinguished Asioty and said:
"In this matter, the applicant's case and all of the evidence led in support of it, was on the basis that prior to the injury, the applicant was fit and strong and healthy. That was supported by the lumbar x-ray noted in Dr B Irani's initial report. Secondly the findings of fact in this case, including this Tribunal's acceptance of the opinion that there is no organic reason for any restriction on the applicant's ability to work, clearly distinguishes Asioty from the present case."
The final matter involved considerations of submissions made by her counsel flowing out of the decision of Einfeld J in Shirley Else Barker v Australian Telecommunications Commission (1990) 95 ALR 72. The submission was, in essence, that where the Corporation terminated an award of compensation there was an onus upon it to demonstrate to the Administrative Appeals Tribunal a change of circumstances in the applicant which would justify termination of payments.
The Tribunal accepted, as indeed it was then obliged to, the decision of Einfeld J as determinative of this matter. However, it did not accept the submission. On this matter it said:
"In the present case the applicant has been aware from the time of the accident that the question of entitlement was not settled. Medical reports were submitted to the respondent regularly and the applicant has been requested to undergo medical examinations with the respondent's medical examiners throughout. The applicant has frequently been requested to resume duties and has been resuming work for periods intermittently since June 1985. Furthermore the applicant has provided to this Tribunal abundant medical evidence from the time of the accident. Thus there is no question as in Barker's case of the applicant being required to substantiate an entitlement to compensation unexpectedly after a long period of payment. In any event, this Tribunal has found as a matter of fact that there was a change of circumstances prior to the decision to cease payments, namely, the cessation of the effects of the musculo-ligamentous strain."
The decision of Einfeld J in Barker was, on appeal reported sub nom Australian Telecommunications Commission v Barker (1990) 12 AAR 490, set aside. However, the matters upon which Mrs Hanna relied before the Tribunal and before me were not dealt with by the full court, that court indicating (at 495) that Barker's Case was not a convenient vehicle to consider the correctness of what had been said by Einfeld J. below.
The statutory backgroundMrs Hanna's unchallenged initial entitlement to compensation derived from s.27 and either ss.45 or 46 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth), ("the 1971 Act"), the injury suffered by her being within the meaning of s.27 of that Act a personal injury arising out of or in the course of her employment by the Commonwealth. That compensation was to be calculated either under ss.45 or 46 depending upon whether the injury she had suffered resulted in her being totally incapacitated for work or being partially incapacitated for work. An injury, suffered arising out of in the course of employment which resulted neither in total nor partial incapacity would be non-compensable under those provisions.
On 24 June 1988 there was assented to the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). Save for ss.1 and 2, that Act, so far as is presently relevant, commenced on 1 December 1988. Section 139 of that Act repealed the 1971 Act, but this is subject to transitional provisions contained in Div 2 of Pt X of that Act (ss.124-130). As was noted in Commonwealth v Esber (1991) 29 FCR 324, these transitional provisions are a source of difficulty, but no such difficulty arises in the present case.
Entitlement to compensation in respect of an injury loss or damage suffered before 1 December 1988 is to be determined in accordance with the 1988 Act, but the entitlement to compensation arises only if compensation was payable under the 1971 Act in respect of that injury, loss or damage: ss.124(1) and (2) of the 1988 Act. Section 19 of the 1988 Act sets out the liability for payment of compensation and the mode of its calculation in essence for post-1988 disabilities.
If compensation were not payable to Mrs Hanna, therefore, either under the 1971 Act or the 1988 Act, because she no longer satisfied the statutory criterion of incapacity, her entitlement to compensation under the 1988 Act would cease. If the 1971 Act is to be considered applicable, there is power conferred by s.20(4)(a) upon the Commission under that Act to reconsider a determination of compensation made in the past and to vary or revoke it. A comparable power under the 1988 Act is to be found in s.62 of that Act conferred upon the relevant "determining authority", in the present case the respondent. It is clear that a determination made under the 1977 Act is, for the purposes of the 1988 Act, including s.62, deemed by s.127(2) of that Act to be a determination made under the 1988 Act. Hence, s.62 clearly confers upon the Corporation a power to reconsider and vary or revoke the original determination of compensation made under the 1977 Act in favour of Mrs Hanna. A decision made by the Corporation on a reconsideration of a determination is a "reviewable decision" and hence can be the subject of a review by the Administrative Appeals Tribunal: ss.60(1) and 63 of the 1988 Act.
While, no doubt, liability to pay Mrs Hanna would cease if she ceased to be incapacitated, the decision that this is so involves a determination, and indeed a reconsideration, of the prior determination. Thus, despite the submissions by counsel for the Corporation that in determining that the liability to pay Mrs Hanna compensation should cease and refusing a reconsideration of that determination the Corporation acted under s.19(1) of the 1988 Act, I think that it would be more accurate to say that the decision appealed against in the present case is a decision made under s.62 of the 1988 Act, a decision which requires consideration of whether Mrs Hanna had an entitlement to compensation under s.19(1) of the 1988 Act. Nothing, however, turns upon this distinction.
The no evidence groundA question of law will arise where it can be shown that there was no evidence upon which the Tribunal could have reached its decision. As Bowen C.J. observed in Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574 at 578, this will be because there is an implication that the Board must have misdirected itself as to the correct legal interpretation of some statutory provision, or have made a perverse finding.
It is, however, not the role of this court, under the guise of a `no evidence' submission, to peruse the evidence to determine whether this court would have reached the same conclusion. It will be for the applicant to show that there was no evidence upon which the Tribunal's conclusions could be justified. If there was some evidence, then the applicant will fail. The `no evidence' rule can not be used as a means to secure an appeal on a question of fact for this court has no jurisdiction to undertake such a task.
As Brennan J said in Waterford v The Commonwealth (1987) 163 CLR 54 at 77:
"There is no error of law simply in making a wrong finding of fact."
Nothing in the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 in any way affects the proposition that the question whether there is any evidence of a particular fact involves a question of law: see eg at 355 per Mason C.J.
As an alternative, it was submitted that an error of law would appear where the decision made was "manifestly unreasonable". Prior to the decision of the full High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, it appeared to have been settled by the full court of this court that a decision could be set aside under the Administrative Decisions (Judicial Review) Act 1977 on the basis that it involved the making of a finding of fact which was unreasonable: Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh noted in (1989) 18 ALD 77. In that case Davies, Burchett and Lee JJ. said (at 80):
"Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground."
However in Bond, Mason C.J. (at 359) expressed disagreement with what was there said unless the finding of fact itself constituted a decision.
In F.C.T. v McCabe (1990) 26 FCR 431 at 438-9, Davies J discussed what had been said by Mason C.J. in Bond. There is a consideration of the same matter by Pincus J in Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 139. That discussion is of little significance in a matter such as the present, for it is concerned with a different question, namely, the scope of judicial review under the provisions of the Administrative Decisions (Judicial Review) Act where what is the subject of review under that Act is an administrative decision. Indeed, in Bond, Mason C.J. (at 357) recognised that there was a distinction between authorities dealing with the general issue of review for error of law and the issue which arises of the interpretation of the grounds of review in the Administrative Decisions (Judicial Review) Act, albeit that the former provides part of the context for the latter.
A decision which is perverse will normally be assumed to involve an error of law, because the very perversity of the decision requires the conclusion that some wrong principle of law must have been applied. The same could probably be said of a finding where that finding is so unreasonable that no reasonable decision-maker could make it; cf Edwards (Inspector of Taxes) v Bairstow (1956) AC 14. Whether a submission that a finding is "perverse" or "unreasonable" in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223) differs in reality from a submission of "no evidence" may be doubted.
Counsel for the applicant submitted, however, that there was a further alternative ground of administrative review open to be considered in the present case, namely that the finding of fact made in the present case was not based on material which tended logically to show the existence of facts consistent with the finding. This submission was in addition to a submission that the reasoning in support of the finding must not be logically self-contradictory and where it is there is an error of law. It was admitted that the current status of that authority in Australia was "unclear".
The possible application of such a ground was also discussed by Mason C.J. in Bond. In discussing this matter the Chief Justice said (at 356), inter alia:
"Further, in Mahon v Air New Zealand (1984) AC 808 at p 821 the Judicial Committee stated that natural justice requires that `the decision to make (a) finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory'. These statements may be traced back to the observations of Diplock L.J. in Reg v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456, at p 488; see also Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at pp 67-68... per Deane J (an appeal from a decision of the Administrative Appeals Tribunal under the AAT Act). The approach in these cases has not so far been accepted by this Court."
In Pochi, the comments of Deane J were agreed to by Evatt J. They were made in the context of a criticism of a passage in the reasons of the Tribunal in a deportation case emphasising that a decision on such an important matter should not rest upon suspicion. It was the view of his Honour that the principle that the Tribunal should act judicially carried with it the requirement that the Tribunal not come to an arbitrary decision, but rather base itself upon material which tended logically to show the existence or non-existence of facts relevant to the issue to be determined. To the extent that these comments form part of the ratio decidendi of the case they of course bind me, for it is clear that the Chief Justice did not find it necessary to reach a conclusion whether they represented the law in Australia. Deane J, in Bond, reiterated the views his Honour had expressed in Pochi (at 366). Toohey and Gaudron JJ. (at 387) expressed their general agreement with the observations of Mason C.J. as to the grounds upon which factual findings may be reviewed. It is not clear whether this agreement extended to the comments which I have set about above, which are really dicta.
It is not necessary, however, in the present case, to decide whether this third ground involves an independent ground of review of decisions of the Administrative Appeals Tribunal, for on the present facts it will be made out only if the decision of the Tribunal was indeed such that it was not based upon some material which tended logically to show the existence of facts consistent with the finding. On the present facts, as I shall demonstrate, it was.
The no-evidence ground as applied to the facts of the present case.In opening, counsel for Mrs Hanna stated that the issue for decision by the Tribunal was whether there was evidence which showed that his client was fit for full-time duties as a mail officer or not. It was his case that she was not, but rather that the evidence would show that she was fit only for permanent part-time clerical work. Counsel for the Corporation basically agreed with this statement of the issue, adding that if it were found that Mrs Hanna were under some limitation in her ability to work, that limitation was the product of a degenerative back injury, the initial injury having been only of a short-term nature. Putting to one side this qualification, therefore, the real issue was a straightforward one, namely whether, as at the date of hearing, Mrs Hanna was in fact incapacitated at all.
X-rays and scans had been taken from the time of the accident until an MRI scan of the lumbosacral spine taken by Dr Ho on 24 January 1989. In addition, Mrs Hanna had been examined by a number of medical practitioners from the date of the initial accident until the date of hearing. These included Dr Irani, an orthopaedic surgeon, who first saw the applicant shortly after the accident; Dr Walsh, a surgeon; Dr Tomlinson, a surgeon; Dr Graham, an orthopaedic surgeon; Dr Guirgis, an orthopaedic surgeon; Dr Elliott, an orthopaedic Surgeon; Dr Deveridge, an orthopaedic surgeon; Dr Marshman, a consultant surgeon; Dr Alexander, an orthopaedic surgeon; Dr Davis, a consultant physician and Dr Eggins a general practitioner. Of these practitioners only Dr Irani, Dr Brown, Dr Deveridge, Dr Alexander, Dr Davis and Dr Eggins saw her after 6 May 1989. Of these, Dr Irani, Dr Brown, Dr Marshman and Dr Eggins gave oral evidence and were cross-examined. Reports from the remaining practitioners were tendered in evidence.
It sufficies to say of the X-rays and scans that a CT scan of the cervical spine by Dr Ho on 6 November 1986 showed no abnormalities. The MRI scan of the lumbar spine made by the same doctor on 24 January 1989 showed: "early localised degenerative change" in the L4/5 disc, and a "mild posterior protrusion" of the disc with the extruded disc overhanging the posterior margin of the upper L5 end-plate.
The opinions of Dr Irani and Dr Brown (as expressed in their oral evidence) and Dr Deveridge were, it might be said, favourable to Mrs Hanna, in that all found ongoing partial incapacity. Not all, it must be said, without equivocation. Dr Marshman concluded after seeing Mrs Hanna on 15 November 1989 that she was fit for work as a mail officer, subject to the restriction, namely that she should not lift weights over 10 kilograms and should not be involved in repetitive lifting or repetitive bending. That report described Mrs Hannan as "displaying a sickness role and portraying disability that has not an organic basis". In expressing Mrs Hanna to be fit Dr Marsham observed that: "she may not wish to perceive such fitness".
Dr Alexander saw Mrs Hanna on a number of occasions. On 6 December 1989, he expressed the view that she was permanently incapacitated from lifting as a result of the 1985 accident. On 26 April 1990, however, his opinion had changed. He said that:
"... I can find no evidence of significant orthopaedic impairment with regard to her lumbar spine and one is wholly dependent on her statements that the pain in the lumbar region and the outer side of the right leg persists. There is currently no evidence of any lumbar nerve root irritation or compression, and therefore no clinical correlation with the CT and MR scans.
... I am unable to demonstrate sufficient organic impairment as would lead me to believe that she would be unable to return to work as a mail officer."
Dr Alexander found there to be "no evidence of an ongoing organic disability". He was of the opinion that she was fit for normal duties.
Dr Eggins examined Mrs Hanna on four occasions between 22 November 1988 and 26 April 1990. It might be noted that although Dr Eggins is a general practitioner he is a partner in a medical practice which specialises in occupational health. In his own words he is a:
"... general practitioner, practising in a specialty. That is - all I do is occupational health. I practise in Redfern."
Each of Dr Eggins' opinions was consistent. They are summarised in his final report as follows:
"I confirm that my opinion remains the same as expressed in the reports dated 22/11/88, 14/4/89 and 9/10/89. I cannot find any signs of a work-related injury, and I consider that Mrs Hanna's continuing symptoms are behavioural. I have no doubt that she remains fit to return to work and perform her full range of duty."
The Tribunal chose to accept the evidence of Dr Eggins. It did so particularly because of the unfavourable view it formed of Mrs Hanna. It was not suggested that this was not open to the Tribunal. Given the significance which Mrs Hanna's reports of her own symptoms had on the reports of some of the other doctors, the Tribunal was entitled to prefer the evidence of Dr Eggins. It simply can not be said that there was no evidence to support the conclusion which the Tribunal reached. Nor was the Tribunal bound to reject the evidence of Dr Eggins because he was but a general practitioner. It was not, nor could it be suggested, that Dr Eggins was not a qualified witness. It is true that little was done to examine his experience in the occupational health field, but that is a matter of little moment. He was a person qualified to give evidence as a witness and to the extent that the Tribunal were to have relied on his evidence alone, it would have been entitled so to do. His evidence would have been some evidence upon which to base its decision. The weight to be given to that evidence was a matter for the Tribunal. Tribunal.
It is, however, not the case that the only evidence in support of the Tribunal's conclusion was that of Dr Eggins. While there was some evidence that Mrs Hanna was not fit for work involving the lifting of weights in excess of 10 kilos, eg the evidence of Dr Marshman, even that evidence suggested that there was no organic cause of Mrs Hanna's problems.
Counsel for Mrs Hanna criticised the Tribunal for failing to understand the significance of Dr Eggins' evidence that the symptoms of Mrs Hanna were behavioural. It was submitted that it was never suggested by Dr Eggins that Mrs Hanna was a malingerer. Rather, it was said, Dr Eggins accepted that the symptoms were real, albeit behavioural. Since the symptoms themselves arose out of the accident, it was submitted that Mrs Hanna continued to remain entitled to compensation.
This submission fails in my opinion to take note of the most important conclusion which Dr Eggins reached, namely that Mrs Hanna was fit to return to work and perform her ordinary duties. His conclusion was not that she was unfit to perform those duties because she had a behavioural disorder. In other words, even if Dr Eggins' views alone are considered, there was evidence upon which the Tribunal could base its finding of fact that Mrs Hanna was not incapacitated.
For the same reasons the alternative submissions must likewise be rejected. It can not be said that there was no evidence of probative value upon which the Tribunal could conclude that there was no incapacity for work. Nor can it be said that in relying upon Dr Eggins' evidence in preference to the reports of specialists the Tribunal's conclusion was manifestly unreasonable.
In the course of argument there was some criticism of a finding of the Tribunal that Mrs Hanna's total leave record, together with the evidence of assistance by others in the home before and after the 1985 accident, demonstrated a pattern of work avoidance. It does not seem likely that in mentioning the leave record the Tribunal was seeking to emphasise the pre-accident leave record, because this did not appear particularly bad. Nor is it easy to understand what the Tribunal meant when it referred to the assistance which Mrs Hanna had in the home from children and others. I was taken to some of this evidence and fail to see anything in it damaging to Mrs Hanna. It may be that the comment was not meant in a perjorative sense. But, however that may be, what the evidence shows is that Mrs Hanna, in the period after the accident, neither worked much in her job nor over-exerted herself at home. The reference to the sick leave record prior to the accident appears to be a reference to the time taken off by Mrs Hanna arising out of another accident. It can not be said that any of these matters demonstrates an error of law by the Tribunal.
It follows, in my opinion, that in making its crucial finding that Mrs Hanna was under no incapacity which prevented her returning to her former employment, the Tribunal did not err in law. The finding was not perverse, nor was it so unreasonable that no reasonable decision-maker could make it. Rather, it was a finding based on the evidence before the Tribunal which tended logically to show the existence of facts consistent with it. The reasoning adopted was not logically self-contradictory. Hence, whichever formulation be adopted, the applicant has failed to make out a case.
The submission based upon Asioty v Canberra Abattoir Pty Ltd.Before the Tribunal, as before me, counsel for Mrs Hanna submitted that if the disc protrusion was the product of some underlying degenerative disease which was aggravated by the injury of 12 April 1985, the case was governed by the decision of the High Court in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533. It was submitted that there was evidence to suggest that Mrs Hanna was rendered more vulnerable to future injury and hence precluded from certain kinds of work, including lifting, inherent in her employment and thus entitled to compensation.
In Asioty, a case decided under the provisions of the Workmen's Compensation Ordinance 1951 (ACT), a slaughterman suffered from an underlying constitutional dermatitis which was not caused by his employment. The situation was one which, however, flared up as a result of work and abated when he ceased work. The condition, in the result, prevented the workman from working in a large range of occupations which caused such a flare up.
In rejecting this submission, the Tribunal apparently took the view that Asioty was a case concerned with the particular wording of s.9(1) of the Workmen's Compensation Ordinance 1951 (ACT), and may for that reason have not regarded it as relevant. It is true that in Asioty the appellant's entitlement to compensation depended upon the wording of the particular ordinance, which at the relevant time read:
"Where -
(a) a workman is suffering from a disease and is thereby incapacitated for work; or
(b) ...
and the disease is due to the nature of the employment in which the workman was employed, his employer shall ... be liable to pay compensation ... as if the disease were a personal injury by accident arising out of or in the course of his employment."
The term "disease" was defined by s.6(1) to include -
"any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease."
However, while the wording of that legislation differs from the present legislation, as also from the legislation considered by the High Court in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, legislation which was described as being more "extensive", a reading of the judgment does not suggest that the case was decided by reference to any difference in wording of the relevant legislation. This is notwithstanding the High Court's insistence that in each case the ultimate issue to be resolved must depend upon whether the employee's situation fell within the terms of the relevant legislation. On the facts, the High Court was of the view that:
"The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance."
Notwithstanding what may appear to be an attempt to distinguish Asioty as being dependent upon the wording of the ACT Ordinance, the Tribunal in any event distinguished Asioty on the facts. The Tribunal said:
"In this matter, the applicant's case and all of the evidence led in support of it, was on the basis that prior to the injury, the applicant was fit and strong and healthy. That was supported by the lumbar x-ray noted in Dr B Irani's initial report. Secondly the findings of fact in this case, including this Tribunal's acceptance of the opinion that there is no organic reason for any restriction on the applicant's ability to work, clearly distinguishes Asioty from the present case."
Both of the matters in the above passage were the subject of criticism before me. As to the first, it was submitted that it was irrelevant that the applicant's case had been led in a particular way for the Tribunal had found, as a fact, that Mrs Hanna was not fit and strong and healthy prior to the injury. As to the second matter, it was submitted that the Tribunal's finding begged the question, for the evidence to which it referred depended upon the examination of Mrs Hanna when she was not at work, that is to say at a time when, so it was submitted, her condition was in remission.
A careful reading of the Tribunal's reasons, however, does not necessitate a conclusion that the Tribunal was of the view that Mrs Hanna was other than healthy prior to the accident. While the Tribunal noted that her sick leave record prior to the accident was incompatible with her assertions of good health prior to that time, it did this in the context of deciding whether Mrs Hanna's evidence of her attempts to return to light postal sorting work were genuine. It found they were not. It found that she had been attempting to demonstrate herself to be fit only for clerical duties four hours per day, while in fact she was not so limited at all.
Given the finding of fact that Mrs Hanna was not to be believed about the extent of her injuries and that she was in fact fit for work, it does not seem to me that the necessary pre-requisites for the application of Asioty's Case can be said to have been present.
In putting the submission, counsel referred me to the evidence of Dr Alexander who was asked some questions about the risk of re-aggravation of the injuries that Mrs Hanna had previously suffered, not as such about the risk of aggravating a pre-existing degenerative disease. Dr Alexander's evidence was qualified because he took the view that what she was telling him was not, to use his words, "fair dinkum".
The second set of evidence was that of Dr Marshman, who thought it might be unwise for Mrs Hanna to lift weights in excess of 10 kilograms. Dr Marshman referred to the "lack of specificity of the particular symptoms" of which Mrs Hanna had complained. Dr Selby Brown spoke of "risk factor", but neither Dr Alexander nor Dr Marshman discussed the question on the basis that there was an underlying degenerative disease which Mrs Hanna had at the time of the accident and which aggravated the disease, rendering her more vulnerable to future injuries. While it would have been preferable for the Tribunal to have addressed the precise issue once it was raised, it no doubt found it unnecessary to do so because of the view it took that there was nothing wrong with Mrs Hanna that would prevent her from working. In my view, the Tribunal did not err in law in reaching the conclusion it did and in rejecting the argument based on Asioty.
The failure of the Tribunal to find a change of circumstancesIt was submitted that where an on-going award of compensation was terminated, it was for the Corporation to show a change of circumstances that would justify the termination of compensation at about the time it was terminated.
This submission has its origin in the decision of the High Court in The Commonwealth v Muratore (1978) 141 CLR 296. Jacobs J, with whom Gibbs, Stephen and Aicken JJ. agreed, said (at 301-2):
"... 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 ...".
Muratore involved an application for judicial review to the NSW Workers' Compensation Commission, by way of a hearing de novo, and not an administrative review in the Administrative Appeals Tribunal. In Barker v The Australian Telecommunications Commission (1990) 95 ALR 72 at 83, Einfeld J refused to distinguish Muratore on the basis that in the Administrative Appeals Tribunal no question of onus of proof arose: McDonald v Director-General of Social Security (1984) 1 FCR 354; Australian Postal Commission v Burgazoff (1989) 10 AAR 296; Elleissy v Australian Telecommunications Commission (14 July 1989, unreported). In so doing, however, his Honour expressed the view that, at least in the case before him, the question did not strictly turn on questions of onus.
Just as, when Barker was heard on appeal before the full court of this court ((1990) 12 AAR 490), it was unnecessary to determine whether the decision in Muratore is applicable in an appeal to the Administrative Appeals Tribunal, so too it is unnecessary to decide the matter in the present case. What the Tribunal found in the present case was that at the relevant date there was no incapacity for work. While it is true that it did not go through the procedure of finding that at the time of the initial determination Mrs Hanna was incapacitated for work but that her situation had changed so that she no longer was, this can hardly be said to be necessary. The Tribunal assumed the previous incapacity and the finding that it no longer existed is clearly enough a finding of a change of circumstances.
To the extent that the Tribunal was required to find a change of circumstances, it purported to do so in the following passage:
"In any event, this Tribunal has found as a matter of fact that there was a change of circumstances prior to the decision to cease payments, namely, the cessation of the effects of the musculo-ligamentous strain."
This second matter was criticised by counsel for Mrs Hanna on the basis that the Tribunal had not dealt with the disc protrusion. It was said that the original determination was based on the disc protrusion causing incapacity and that therefore the Tribunal was necessarily required to deal with that matter.
I should say that this is not the way that the case was put for Mrs Hanna below. As I have already indicated, the issue that was said to arise by all parties was the issue of her incapacity for work. A decision that there was no such incapacity carried with it the consequence that Mrs Hanna was no longer entitled to compensation. Nothing in Muratore suggests, to my mind, that the Tribunal need go further than that.
In my view, Mrs Hanna has failed to establish that the Tribunal erred in law and accordingly her appeal must be dismissed with costs.
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