Harrison, W.J. v The Director-General of Social Security

[1985] FCA 215

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IN THE FEDERAL COURT OF MJSTRALIA )

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IlEbJ SOUTH T L E S DISTRICT REGISTRY )

GENERAL DIVISION

ON APPEX from the

Administrative Appeals Tribunal

BETTEEN :

bTILLIAM J O H N HARRISON

Applicant

N S :

THE DIRECTOR-GENERAL OF

SOCIAL SECTJRITY

Respondent

MINUTE OF ORDER

JUDGE:	FOX J.
DATE OF ORDER:	22 MAY, 1985
WHERE MADE:	Sydney.
THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEN SOUTH WALES DISTRICT REGISTRY	)	No. G394 of 1983
)

DIVISION	GENERAL	1
ON AF'PFdL from the Administrative Appeals Tribunal
BETWEEN : bIILLIAM JOHN HARRISON

Applicant

m:

THE DIRECTOR-GENERAL OF

SOCIAL SECURITY

Respondent

C m : FOX J.

D B : 22 MAY, 1985

REASONS FOR JUDGMENT

EX TEMPORE

FOX S .

This is an appeal from a decision f the Administrative

Appeals Tribunal, comprised of Sir William Prentice, as Senior

Member. The applicant Mr Harrison applied for an invalid pension

in June 1980. There seems to be some doubt as to when he last

worked. On the records it is shown as 6 May 1980 but in answer

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to leading questions when giving evidence before the Tribunal Mr

Harrison said that it was 1979. Nothing turns on the difference.

His application for a pension was rejected and an appeal

to the Social Security Appeals Tribunal failed. A further appeal

to the Administrative Appeals Tribunal was not successful, the

decision thereon being given on 11 November 1983.

bTherever the fault may lie the total delay in dealing

with the matter is quite deplorable. I agree with the remarks on

the subject of delay in similar proceedings which were made bp

Wilcox J. in two cases in which he delivered judqment earlier

this year (McBav v. Director-General of Social Securitv,

Unreported 15 February 1985; Adamou v. Director-General of Social

Security, unreported 11 March 1985).

Some of the matters raised in the nature of appeal to

this Court were abandoned when counsel for the appellant opened.

The questions of law mentioned in paragraphs (f) and (g) of

paragraph 2 of the notice of appeal were said not to be the

subject of consideration and it was also said that ground 4(d)

c7as not to be pursued.

At the time the applicant ceased work. depending upon

when exactly that v7as, he was 48 or 49 years of age. He had for about 27 years been working as a carpenter, making coffins. His

education had been limited and he v7as. as it has been said,

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noticeably of very light build. The reasons for him leaving work

were multiple and included the necessity for an unduly early

rising. An important consideration seems to have been the

persistence of back pains. The Tribunal doubted whether his then

condition, with its symptoms, provided a sufficient reason for

him leaving work. As for the nature of his condition it is put,

shortly, as one of fairly widespread spondylitis and arthritis.

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His case is based on s.23 of the Social Security Act

1947, which I quote:

"23. For the purposes of this Divisi0n.a person shall

be deemed to be permanently incapacitated for work if

the degree of his permanent incapacity for work is not

less than 85%."

For the purposes of his application Mr Harrison was

examined by a number of doctors, including two psychiatrists,

whose views were sought because of a possible psychogenic

condition.	This	possibility	was	eventually	rejected	by	the
Tribunal.

Except as to capacity for work of the applicant, the

medical evidence is substantially consistent.

The primary challenge to the decision of the Tribunal is

that it did not give adequate reasons, particularly on the question of availability of work. I mentioned at an early stage that in any ordinary case, this would only lead to remission of

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the matter to the Tribunal for further reasons. I have also been

referred to the High Court decision in Repatriation Commission v.

O'Brien (1985) 59 A.L.J.R.	363 and in particular to what was said
by Brennan J. therein (see	p . 3 7 3 ) .

In this case I am of the view that the applicant cannot

succeed to any extent simply on	a challenge to the inadequacy or
otherwise of the reasons.

There were some matters of substance raised in

association with the argument concerning absence of reasons and	I
will mention them later.

What the Senior Member did was to examine the evidence

in some detail, reject some of it, and state his conclusions on

the rest. In my view his decision does sufficiently show the

reasons for his decision. Further, although "reasons" are not

the total requirements of sub-sections 4 3 ( 2 ) and 4 3 ( 2 B ) the

decision does comply with the whole. It is not necessary, in

order to satisfy the requirements of the sub-sections to which I

have referred that the necessary matter be set out formally or sequentiallp. It may appear sufficiently, as well as more naturally, from the way the decision is expressed. The reasons may be apparent from the exposed process of reasoning.

On substantial matters that were discussed I set out

paragraphs 17 and 18 of the decision, which appear in the

concludinq parts of it:

"17. Givin? the matter anxious and ympathetic

consideration. I consider it established on the

probabilities that Mr. Harrlson's physical

condition then and nor< represented and represents

not a great deal more exacerbation than can accrue

from the natural aqeing process of a spine of a man

of his aqe. No doubt he would be advised to limit

some activities that he had earlier not been

trot-lbled bp. That he '78s able to do this to an

extent, is illustrated by his adapting from

carrying his completed carpentry to sliding it

alonq the floor to th? polishing section. I do not

think it established thar Mr. Harvison was unable

to continue with his then work in 1980 I thouoh by

then suffermg pain from time tn time and

incomrenience, , nor that he would be unable to

resume it now. It is clear that he has not in fact

snuqht either that work aqarrn on rejection of his pension claim, or souqht any alternative work of a 1iThter nature within his rnmpetence and experience

since leaving coffin making, though complying with

the instructions of hls Solicitor that he should

reqister with C.E.S.-ineffectual as that was shown

to be by Mr. Lawson's evidence. Thouqh too mluch

should not be made of it and it is to his credit

that he revealed it; the fact that he can play the

rrigorous game of ten-pin bowls for some 2 hours

each veek (the bowlina action of which involvinq

bending and trnsting he demonstrated with viqour

and aqility) may well be thouqht an index pointing

to a lack of incapacitation to any oery marked

degree.

18.  With all due respect to Mr. Lawson's views as to work prospects in the Blacktown area. and havinq

reqard to his apparent lack of knowledge as to the

coffin making trade in particular; I am by no means

persuaded that Mr. Harrlson with his many years of

satisfactory work experience in that coffin makina

industry could not regain a position in it OK an

sllied one. I nio not consider it established that

Mr. Harrison's cturrent unemployment sprinqs from

such medical disability as he unfortunately

experiences. but rather from his own decision to

cease Workinq because of the difficulties of life,

The term "Imemployable" tends to be iused in

submissions in these matters. In the €ramework of

Social Security legislation providing difrsr-nt

classes a sistance of 1ncll.tdinq that of unemployment benefits; the term may not always be

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helpful. As was stated in Howard's case (N81/125

at paqe 19) "at a time when the rate of

unemployment is high it is not a simple matter to

determine whether the lack of employment can be

attributed to medical disabilities O K is the result

of the aeneral state ,of the labour market or of the

claimant ' s aue" .

The body of evidence in this matter leaves me

wlthout conviction that it can fairly be said that

Mr. Harrison's leavina work should really be

attributed to medical disabilities of a severely

incapacimting nature. Nor do I consider it to

have been shown that his continued unemployment

thereafter may be so attributed to a severe medical

impairment rather than to his own election. A

corollarp would seem to be that any difficulty that may ensue in obtaining employment in the immediate

future. should be seen as attributable to the

general economic recession and the claimant's aae.

rather than to a 'very substantial degree of

permanent incapacity for employment induced by

medical impairment."

There is not much evidence as to the avallability of

work for Mr Harrison, but there is some. For that matter. there is not an exhaustive examination of all the things he can do.

The Senior Member took as a starting point his view that INK

Harrison could have continued with the work he was doinu. I

think it 1s .rrong to say, as has been araued. that the Senior

Member had a pre-occupation with this circumstance. What he c7as saying was that the applicanr; t . 7 ~ not eliaible for a pension from

the time he left work. and that he then had employment which.

assuming he 17as sufficiently fit, would have continued. There is

evidence that he could now do the same work "at bench level",

that is, without much stooping, bending O K turning.

There is evidence from doctors as to the sort of work

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the applicant can do and this covers a field sufficiently wide to

negative the notion that he is, OK was, an "odd lot". The

Tribunal was also able to use its own broad knowledge of the

employment market. The evidence on this aspect, as accepted by

the Tribunal, would not in my view support any conclusion that

the applicant was presently incapacitated for work by reason of

his medical condition OK at all.

One relatively small matter was raised, which deals with

the fact that the Tribunal set out evidence from the medical

witnesses and at the end of the whole the Senior Member stated

his conclusion without indicating in each case in advance what he

57as going to accept or reject. In one OK two cases he did

specifically reject evidence, both lay and medical but	he also,
when dealing with the evidence of each doctor, sufficiently

indicate how he sa~.7 it in the context of the whole. It is

apparent in my view from his conclusions and the way he xpressed

them what evidence he had accepted from the medical witnesses.

It was not necessary for him to say in relation to each

piece of medical evidence what weight was to be given to each. This would be an impossible task. B11 that is necessary is that there be a sufficient indication from what he has done to show

the view he has taken of the medical evidence, there being

otherwise a compliance with section 43(2B3.

Other matters raised on behalf of the applicant amount

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to criticisms of the findings of fact. It is of course not open

to the Court to review the findings of fact. It can only deal

with errors of law, and in my view no substantial questions of

law have been raised.

In my view the application should be dismissed, and I

order accordingly.

I certlfy that this and the S u v h (7)

precedlng pages are a true copy of the

Reasons for Jud~mentherelnofhisHono~r	i
Ur. Justlce -X	>

%;CA& 1 l

Associate

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Dated: 2 9 /7&'&-

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