Hassan Bin Tahal v Comcare

[2004] FCA 680

FEDERAL COURT OF AUSTRALIA

Hassan Bin Tahal v Comcare [2004] FCA 680

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Glavonjic v Foster [1979] VLR 536
Comcare v Filla [2002] FCAFC 61

HASSAN BIN TAHAL v COMCARE
Q118 OF 2003

COOPER J
CAIRNS
17 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q118 OF 2003

BETWEEN:	HASSAN BIN TAHAL APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 MAY 2004
WHERE MADE:	CAIRNS

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The appellant to pay the respondent’s cost of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q118 OF 2003

BETWEEN:	HASSAN BIN TAHAL APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	COOPER J
DATE:	17 MAY 2004
PLACE:	CAIRNS

REASONS FOR JUDGMENT

1. This is an application by way of appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) from a decision of Deputy President Muller given on 11 July 2003.  The learned Deputy President determined to affirm the decision to refuse the applicant’s claim for compensation for permanent impairment pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’).  The applicant had brought a claim for permanent impairment as a result of a psychiatric injury sustained while an employee of the Aboriginal and Torres Strait Islander Commission.

2. There are two issues raised in this application.  The first is whether or not the learned Deputy President failed to properly take into account the applicant’s psychiatric condition when considering whether it was reasonable for him to take any medication.  The second issue is whether the learned Deputy President erred in failing to properly consider the evidence in coming to the conclusion that the applicant’s permanent impairment would be less than ten per cent. 

3. The argument which was put in the outline of submissions prepared by the applicant’s counsel in relation to the first issue was that the common law test laid down in Glavonjic v Foster [1979] VLR 536 at 539 (which has been adopted in a number of common law jurisdictions) ought to have been applied by the Deputy President.

4. It is clear from the decision of the Full Court of this Court in Comcare v Filla [2002] FCAFC 61 at par [8], that the relevant test in relation to the taking of rehabilitative treatment under s 24(2)(c) of the SRC Act is, first: 

   ‘... [W]hat, if any, reasonable rehabilitative treatment exists for the particular impairment whose permanence is under consideration;  and, secondly, assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration, has the employee undertaken all of it?’

5. It is not in dispute in this case that there is medication available for the treatment of the condition from which the applicant suffers, and there was no dispute among the doctors in relation to such availability.  But the Administrative Appeals Tribunal (‘the AAT’) found that to take the treatment, or to take the medication, would improve the condition.  The Deputy President was not unmindful of the common law position and made specific findings in relation to the position of the applicant in this case.  He said, in par [29]:

   ‘[29]   This is not a case where the applicant is suffering from a mental disorder of such severity that his fear of treatment is due to an irrational mindset.’

6. That obviously indicates the common law test as to whether or not the presence and operation of an irrational mindset can be a ground of reasonable refusal.  The Deputy President continued:

   ‘ ... The Applicant has only very mild psychiatric illness.  He will never know whether or not he has any problems with treatment and medication until he tries it.’

7. In par [25] of his reasons, the Deputy President sets out the reasons given by the applicant as to his refusal to take the medication and whether or not it is reasonable having regard to his condition earlier in par [28]. The Deputy President makes the following finding in relation to treatment for the condition in par [25]:

   ‘The Applicant has never been treated for his psychiatric condition by any qualified medical practitioner.  He prefers to use herbal remedies and other forms of rehabilitation like meditation, Karate and basketball.  The Applicant claims that he does not take medications because of his martial arts beliefs and also because of a fear of “side effects”.  He admitted that he did not know what side effects he was afraid of.’

8. Having regard to the reasons of the Tribunal, it cannot be said that the Tribunal failed to take into account the operative effect of any psychiatric condition from which the applicant is suffering in determining whether or not the refusal to take the medication was reasonable.  Having regard to the findings, the conclusion that the Deputy President came to was a correct one because the test which was set out in Filla was operative in the present case.  That is, there was a course of medication available for treatment which would have been efficacious to some extent, and there had been a refusal to take it. 

9. Accordingly, the application must fail in respect of the first issue.

10. The second issue, in my view, invites this Court to review the facts and make its own judgment in relation to issues of fact.  Questions of fact are not matters which can be reconsidered by this Court.  There was, in my view, sufficient evidence before the AAT to enable the Deputy President to come to the view which he did in relation to the second issue.  Consequently, the second ground of appeal is not made out. 

11. In the circumstances, the application will be dismissed and costs will follow the event. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             17 May 2004

Counsel for the Applicant:	J Sheridan
Solicitor for the Applicant:	Thompson & Royds Lawyers
Counsel for the Respondent:	E Ford
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	17 May 2004
Date of Judgment:	17 May 2004