Hickey v Australian Postal Corporation

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FEDERAL COURT OF AUSTRALIA

Hickey v Australian Postal Corporation [2023] FCA 57

Appeal from: Hickey and Australian Postal Corporation (Compensation) [2021] AATA 1521
File number(s): NSD 580 of 2021
Judgment of: BURLEY J
Date of judgment: 8 February 2023
Catchwords: ADMINISTRATIVE LAW – appeal from decision of the Administrative Appeals Tribunal affirming determination by the respondent that it has no present liability to continue paying the applicant compensation for back injury sustained at work in 1993 – whether Tribunal provided adequate reasons for its decision – whether Tribunal applied the wrong standard of proof when deciding whether the applicant sustained a certain injury and continues to experience symptoms – whether Tribunal applied the wrong test when determining whether the injury sustained in 1993 caused his incapacity for work and need for medical treatment – appeal dismissed   
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14, 16, 19, 62
Cases cited:

Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 187; 48 ALR 500

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135

Cross and Comcare [2018] AATA 52

Hickey and Australian Postal Corporation (Compensation) [2021] AATA 1521

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468

Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; 31 ALR 666

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328

Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260

V324 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259

Wingfoot Australia Pertners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480

Wonson v Comcare [2020] FCAFC 76; 276 FCR 613

Woodhouse v Comcare [2021] FCAFC 95; 285 FCR 14
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 96
Date of hearing: 9 March 2022
Counsel for the Applicant: Mr P King with Mr R McCabe
Solicitor for the Applicant: McNally Jones Staff Lawyers
Counsel for the Respondent: Mr P Hanks QC with Mr P Woulfe
Solicitor for the Respondent: Moray & Agnew Lawyers

ORDERS

NSD 580 of 2021
BETWEEN:

KIM FRANCIS HICKEY

Applicant
AND:

AUSTRALIAN POSTAL CORPORATION

Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

8 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Applicant pay the Respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

1       INTRODUCTION

[1]

2       THE DECISION

[12]

3       THE APPEAL

[24]

3.1      The Statutory Context

[24]

4       GROUND 2 – FAILURE TO GIVE…

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Details
Case
[2023] FCA 57
Decision Date

CaseChat Overview and Summary

In Hickey v Australian Postal Corporation, the applicant, Mr Hickey, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) affirming the respondent’s determination that it had no present liability to continue paying compensation for a back injury sustained at work in 1993. The primary issues for determination were whether the Tribunal provided adequate reasons for its decision, whether it applied the wrong standard of proof when deciding whether Mr Hickey sustained a certain injury and continues to experience symptoms, and whether it applied the wrong test when determining whether the injury sustained in 1993 caused his incapacity for work and need for medical treatment.

The AAT had summarised the application and outlined the procedural history of the case. It identified the issues for determination as whether, as at 15 January 2015, the respondent had a present liability to pay compensation for the costs of medical treatment and incapacity for work resulting from the injury sustained on 27 September 1993. The Tribunal reviewed the medical evidence and legal principles pertinent to the case and heard evidence over six days. It ultimately rejected Mr Hickey's submissions that his ongoing symptoms were a result of the work-related injury, finding that he no longer suffered from the work-related injury as at 15 January 2015 and that his ongoing symptoms and progressive degenerative changes were not related to the injury.

The court found that the Tribunal did not impose a standard of fact finding above the balance of probabilities. The Tribunal's reasons indicate that it provided an analytical basis for preferring the approach of one expert over others, rather than elevating the onus to one approaching scientific or medical certainty. The court concluded that the Tribunal's application of the relevant legislative provisions was correct.

The appeal was dismissed, and Mr Hickey was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Applicant pay the Respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons set out in more detail below, the application must be dismissed. 2. THE DECISION The Tribunal summarised the application for review made by Mr Hickey and then set out the procedural history of the application. It noted that the issues for determination as identified by the parties were whether, as at 15 January 2015, the respondent had a present liability to pay compensation to Mr Hickey in respect of:(a)the costs of reasonable medical treatment (if any) obtained in relation to an “L5-S1 disc prolapse on the left with a [sequelae] of soft tissue injury right foot”, sustained on 27 September 1993, pursuant to s 16 SRC Act; and(b)incapacity for work resulting from the injury pursuant to s 19 of the SRC Act. The Tribunal traversed the 22 year history of the proceedings from the initial incident report of 27 September 1993 to the determination made by a delegate of the respondent on 15 January 2015. In this part of its decision, the Tribunal identified various of the medical assessments and determinations made during Mr Hickey’s employment, quoting from parts of the medical evidence. It also referred to medical assessments that had been procured by the parties since 2015, quoting from parts of the material that it considered to be relevant. The Tribunal set out the legislation and general legal principles pertinent to the application, about which there is no complaint on appeal. The evidence in the proceedings was heard by the Tribunal over the course of six days with written closing submissions received after the hearing. During the course of the hearing, the oral evidence of 13 witnesses was received, five of whom were medical practitioners. In addition, the Tribunal received medical reports from a number of additional medical practitioners. The Tribunal itemised the evidence received. The Tribunal reviewed in some detail oral and written evidence of Mr Hickey, quoting from and summarising various aspects of it. At [76] it recorded Mr Hickey’s response to a question as to his symptoms at the time of the injury, whether his symptoms changed after that, and what Mr Hickey feels when he experiences an inflaming event:Mr Hickey: I had pain going down my leg from my left buttock. There was like jolts of pain...At first, those symptoms continued for a few days. I had my partner, Lara, bringing me bottles so I could urinate in them because I couldn’t get out of bed and get to the toilet. But when I was able, I made my way to see a doctor and after a few – after a few weeks the spasming attacks of pain subsided substantially. I was just left with a – just a constant like gnawing. I’ve described it in the past as like – like ants eating away at the base of my spine. It’s difficult to put in terms that others would understand but it was just a constant thing and that subsided somewhat over a period of time but it’s never abated. It’s always – there’s always a pain in my left buttock and that’s sort of the situation I have remained with today. I think the only thing that’s changed is over the years I have learned what I should and shouldn’t do in order to avoid inflaming the area because once I stir things up enough, then the problem becomes more constant and more difficult for me to manage. …Counsel: Can you just describe what you feel when you [have] an inflaming event?Mr Hickey: Well, if I stand for an extended period just in the one spot, and I keep my weight evenly on both feet, what can often happen is after a period of an hour or so, I don’t know three-quarters of an hour, it just depends, when I lift my left foot off the ground I get a sciatic discharge down my leg and that ---Counsel: What’s that? Can you just explain, what you mean by a sciatic discharge?Mr Hickey: Well it’s like – it’s like back in the van when the injury first happened, when I first was trying to get in and out of the van using the bar work, it’s excruciating. It’s like almost an electric discharge but it’s violent and extremely painful. It lasts for a very short-term, like a bolt of electricity, but then I’m more susceptible to further discharges the same and that constant pain that’s in my left buttock is magnified until things settle down and that can be a coin toss in the air. It just depends on some many variables that I still can’t predict to this day. Sometimes it can settle down within the day, or the day after, and sometimes I’m stuck with it for a week, just the increased pain in my left buttock, and I’ve got [to] nursemaid through to make sure that I don’t do anything that’s going to trigger that discharge, as I call it, like that shooting pain. Once – that’s a trigger for greater pain. I pay for that. Once that happens I’m – I have to watch myself more carefully. …

Ratio Decidendi

Legal Principle Established

The basis in the Tribunal’s reasons for the criticism advanced in this ground is the fact that in large part the Tribunal preferred the views of Mr Phillips in reaching its conclusions over those of other experts. In his oral evidence, Mr Phillips had said, when questioned about the radiological evidence, that “you need to prove that the disc protrusion is causing the pain”. Mr Hickey submits that this, taken with the Tribunal’s acceptance of Mr Phillips’ evidence in general and the passage at [203(b)] of its reasons to the effect that relying only on the temporal connection between radiological evidence of a disc protrusion and the incident is “presumptuous, incorrect and lacks the necessary corroborative evidence”, reflects the imposition of a standard that exceeds the requirements of the legislation. 5.2 Consideration The Tribunal’s reasoning and analysis of the evidence may be seen in the passages from [199] to [206]. Its findings of fact are to be seen in [209] to [211]. In particular, the Tribunal rejected Mr Hickey’s submission that the correct and preferable decision is that as at 15 January 2015 his need for treatment and his incapacity for work were as a result of a work-related disc injury in favour of the view that: (a) as at 15 January 2015 he no longer suffered from the work-related injury; (b) if he had on 27 September 1993 suffered a disc protrusion (which it did not accept) then that injury should have settled within several months and Mr Hickey’s ongoing symptoms and progressive degenerative changes are not related to that injury; and (c) if his work-related injury was of a different nature, the evidence does not demonstrate to the Tribunal’s satisfaction that Mr Hickey continued to suffer from its effects as at 15 January 2015. Nothing in the language of the Tribunal’s findings of fact supports the view that it imposed a standard of fact finding above the balance of probabilities. In accepting the evidence of Mr Phillips, including his reservations as to the approach of other experts, the Tribunal does not evince an approach whereby it elevated the onus to one approaching scientific or medical certainty. Rather, its reasons indicate that it was providing an analytical basis for preferring the approach of Mr Phillips to that of the medical practitioners called by Mr Hickey. Nothing in its reasons indicates that in reaching the factual findings set out in [210] to [211] the Tribunal did not consider the application of the SRC Act on the basis that it was considering whether the injury suffered by Mr Hickey on 27 September 1993 fell within the definition of “disease” under s 5B of the SRC Act. In this regard, it may be noted that in [51] to [54] of its reasons the Tribunal set out s 14(1) of the SRC Act, the definition of “injury” in s 5A(1) and the definition of “disease” in s 5B(1). It cited at length the discussion of Deputy President Boyle in Cross and Comcare [2018] AATA 52 as to the meaning of an ailment suffered by an employee “that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee” which itself cited various authorities. The concluding paragraph of the quotation is as follows:I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.