Hughes v Australian Postal Corporation

[2002] FCA 1645

FEDERAL COURT OF AUSTRALIA

Hughes v Australian Postal Corporation [2002] FCA 1645

DAVID HUGHES v AUSTRALIAN POSTAL CORPORATION

N1054 OF 2002

MADGWICK J
10 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1054 of 2002

BETWEEN:	DAVID HUGHES APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	10 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal be set aside.

2.The matter be remitted to the Administrative Appeals Tribunal, as previously constituted, for reconsideration in accordance with these reasons for judgment.

3.The respondent is to pay the applicant’s costs of the appeal to this Court.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1054 of 2002

BETWEEN:	DAVID HUGHES APPLICANT
AND:	AUSTRALIAN POSTAL CORPORATION RESPONDENT

JUDGE:	MADGWICK J
DATE:	10 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“the AAT”) made on 6 September 2002 affirming the decisions of the Australian Postal Corporation dated 25 February 2000 and 23 May 2001 in relation to the applicant’s claims for compensation under the Safety, Rehabilitation & Compensation Act 1988 (Cth) (“the Act”). 

2. The applicant was an employee of the respondent at its Silverwater Delivery Centre and at the relevant time it was his job to remove mail from bins, unload large letters from bags into bins and then sort the letters into pigeon holes for postal delivery officers to collect them for ultimate delivery to their addressees.  On 3 January 2000 the applicant started work at about nine o’clock and some time later, perhaps around midnight, he was found on the floor after a witness had heard a noise.  The applicant’s claim was that he slipped “on something on the floor”, fell and was injured in that fall. 

3. He was taken by ambulance to Auburn Hospital and it is common ground that he was diagnosed as having sustained a fractured skull.  Mr Hughes had in fact had a fractured skull many years earlier and it seems that the doctor on duty at the hospital misread an x-ray.  The applicant seems to have been something of an unreliable witness, before the AAT, having apparently contradicted himself as to some matters and having said things that were contradicted by more contemporaneous records that apparently appealed to the relevant member of the AAT.

4. The proceedings, it is fair to say, had their genesis in somewhat messy paperwork.  For an employee such as the applicant, the Act prescribed in s 14 that:

   “Subject to the Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

   Section 16 adds a liability in Comcare to pay compensation in relation to reasonable medical treatment whether or not death, incapacity or impairment resulted from the injury.

5. The first relevant document seems to have been an “Incident Report” dated 4 January 2000 and, in a part thereof intended to be completed by the subject employee, in answer to an instruction to “describe how the incident happened”, the following statement appears:

   “I trod on an inner [roll?] from a roll of paper and lost my balance and fell flat on my back.”

   After a paragraph that invites information to be given as to “nature of injury or illness apparent at time of report and part of the body affected” there is reference to “pain, neck and head” and to “back, neck and back of head”.  However, that page was signed by the applicant’s supervisor, Ms McGlynn, who completed the rest of it as his supervisor.  In the course of her report in the same document, as I understand it, she said:

   “Dave was emptying large letters into PDO’s trolley when he slipped on a cardboard roll and fell over.”

   There is then a document headed “Claim for Compensation Witness Statement” which refers to the result of the accident as “frac[t]ured skull” and a CT scan report is attached, together with a medical certificate dated 4 January 2000 which gave, as the opinion of its author, that the applicant was suffering from “fracture[d] skull”.  There is a fitness for work certificate from a Dr Scott (prepared for the respondent) dated 5 January 2000 which certified Mr Hughes as fit for full duties with no restrictions from 7 January 2000 but his own GP, Dr Gardner, on 6 January 2000, certified him as totally unfit for work from 6 January 2000 to 17 January 2000.  On 17 January, Dr Gardner certified that he was fit to resume his pre-injury duties on 18 January.

6. A “Claim for Rehabilitation and Compensation” asserting as an injury “fractured skull” was signed by Mr Hughes and dated 5 January.  On 18 January an officer of the respondent responsible for processing compensation claims denied liability on the basis that “your head injury is older than 3/1/00”.  On 14 February the applicant wrote to the respondent saying:

   “In reply to your letter dated 18.1.2000 I wish to put in an objection to your refusal of workers [compensation] from 3.1.2000 to 17.1.2000.

   I did slip on something on the floor and was injured in that fall and taken by ambulance to Auburn Hospital.  I also hurt my head, neck, shoulder and back.  I was kept in hospital for 32 hours for necessary observation after which I went to work, home and to see your Doctor.

   I then went to see my family doctor, Dr R. Gardner, who said I was unfit for work 6.1.2000 to 17.1.2000 and statements from hospital xray reports.

   I did slip on the floor causing my injuries.  I was off work on doctors advice with medical certificates.

   Please reconsider original [decision] and grant me workers compensation plus my expenses for this time off.  I have enclosed copies of all certificates and paper work to help your [decision].”

   This letter was dealt with by an officer of the reconsideration section of the respondent’s who commenced his response as follows:

   “Reference is made to your letter dated 14th February 2000 requesting reconsideration of decision dated 18th January 2000 in respect of “FRACTURED SKULL” injury sustained on 3/1/00.

   Having regard to the evidence before me ... I hereby AFFIRM the decision of the delegate dated 18th January 2000 and determine that Australia Post is not liable to pay compensation.”

   The relevant officer continued by referring to some of the evidence and he concluded:

   “Based on the evidence as a whole, I am not satisfied that you have sustained an injury at work.  I therefore affirm the decision of 18th January 2000 and determine that Australia Post is not liable to pay compensation.”

   On 1 May 2000 Mr Hughes submitted another “Claim for Rehabilitation and Compensation”, attaching a certificate dated 28 April from Dr Papatheodorakis which apparently described him as suffering from a sore neck and shoulder and recommended that he perform restricted duties for a period of time.  The compensation officer responsible for processing the claim dealt with the matter by saying:

   “I assume you are claiming compensation for neck and shoulder pain which you attribute to the alleged fall at work on 3/1/00.”

7. The officer favoured the applicant with certain “questions which I ask myself” about the claim which would seem to question the genuineness of the applicant’s neck and shoulder pain rather than of the fall or initial injury and concluded:

   “I find that your claim for compensation is not credible, and I determine that Australia Post is not liable under section 14 of the Act to pay compensation to you in respect of any injury to the neck or shoulder.”

8. The applicant sought a review by the AAT of the original decision of 25 February 2000 in proceeding numbered by the AAT as N2001/25.  In relation to the second claim, the applicant sought an internal reconsideration by Australia Post which was unsuccessful, and the reconsidering officer seems to have limited the reconsideration solely in relation to the determination of 11 May 2000.  That reconsideration occurred on 23 May 2001.

9. Mr Hughes then made a claim for compensation in respect of permanent impairment and non-economic loss and another officer of the compensation section, by letter of 15 June 2001, purported to vary “the determination of 5.5.00” which, as far as I can make out, is a reference to a determination in a letter of 11 May 2000 which reads as follows:

   “Australia Post is not liable to pay compensation to Mr Hughes in respect of any injury to the neck and shoulder.  The denial of liability encompasses all relevant provisions of the Act, including sections 14, 16, 19, 20, 21, 24, 25 and 27.”

   From all of these three final reconsideration rejections the applicant ultimately appealed to the AAT, as he was entitled to do pursuant to s 64 of the Act.  In addition to proceeding N2001/25 to which I have referred, the AAT had before it N2001/704 which was an appeal against the reconsideration decision of the respondent of 23 May 2001, which was understood to relate to an alleged injury to the neck and shoulder, and N2001/924 which was understood to refer to the claim for permanent impairment.

10. The parties, in accordance with the practice of the AAT in these matters, sought to assist the delineation of the issues by each filing a statement of facts and contentions.  The applicant’s amended statement of facts and contentions in matter N2001/25 contended:

    “1.The applicant sustained injury to his neck, back and head at work on 3 January 2001 ... 

    2.The applicant continues to experience ongoing pain in his neck and back as a result of the work related injury on 3 January 2001. 

    3.The applicant is entitled to compensation for his head and back injury for a closed period pursuant to s 14 of the Safety Act. 

    4.The applicant is entitled to ongoing compensation for his neck and back injuries pursuant to s 14 of the Act.”

    In the same manner the solicitors for the respondent in their statement contended:

    “1.The applicant does not suffer from an injury or aggravation of an injury within the meaning of s 4 of [the Act].

    2.The applicant is not entitled to compensation for alleged injuries to his neck, back and head within the meaning of s 14 of [the Act].”

    This is enough to show that the applicant was, among other things, continuing his claim for “a closed period” of total incapacity for work from 3 January to 17 January 2000, was asserting partial incapacity and, by the other concurrent appeal, was claiming compensation for permanent impairment as well.

11. The transcript shows that the Senior Member of the AAT who heard the matter invited counsel for the applicant to open the case, which he did, but the transcript regrettably does not clearly indicate what it was that counsel said – it cannot therefore be asserted, and in fairness to counsel for the respondent here it was not asserted, that the claim for the closed period was abandoned.  It is true, however, that the major controversy appears to have surrounded the ongoing claim for compensation.

12. The Senior Member’s reasons were, with respect, not expressed with as much clarity or structure as might have been desirable had a counsel of perfection prevailed:  no doubt the Senior Member was very busy.  At all events, the Senior Member fairly comprehensively reviewed the evidence and arguments and concluded:

    “In summary I found Mr Hughes' evidence to be unreliable. He may have suffered some minor injury in the fall on 3 January 2000, which soon resolved, but the evidence indicated that the motor vehicle accident of 28 August 2000 was by far more serious. It is worth noting that only after that accident when he had serious neck symptoms did Mr Hughes seek a reconsideration (T6/Exhibit R11) of the denial of liability of the Respondent dated (11 May 2000).

    As to what incapacity Mr Hughes suffered; Ms Henderson submitted that Mr Hughes gave evidence that the highest pigeon holes used for sorting mail were at eye level so that even with restrictions, Mr Hughes could still carry out that work. That submission was not rebutted by Mr Watts, and I accepted Ms Henderson's submission.

    I could not find that whatever injury, if any, Mr Hughes suffered in the incident of 3 January 2000 was compensable, or indeed had not resolved after a very short time. I accepted the evidence of Ms McGlynn that the mail was in a neat pile and a row of trolleys nearby had not moved after Mr Hughes' fall. I accepted that the ambulance personnel had immobilised Mr Hughes for transporting him to hospital, but I did not give weight to the submission that his injury (if any), must therefore have been serious. Although there was no evidence given by the ambulance personnel, I accepted that what was carried out must be standard procedure where serious injury is suspected, in this case based on Mr Hughes' complaints of a crack in his neck, and back and shoulder pain.

    Notwithstanding the early diagnosis of fractured skull (Dr Kuk (T6/17, Exhibit R10), I found from the medical evidence and radiological investigations before me indicated that the fractured skull Mr Hughes suffered was that which he suffered on 1 March 1983, and not in the fall on 3 January 2000. The claim must therefore fail and the reviewable decisions be affirmed. I moved then to consider Mr Hughes' claim for permanent impairment.”

13. The Senior Member proceeded to dismiss the claim for compensation for permanent impairment and that has not been challenged in these proceedings. 

14. The Senior Member’s approach seems to have been, understandably, to concentrate on the most financially important aspects of the claim, namely the claim for continuing compensation, and this appears to have been a consequence of the way in which Ms Henderson, counsel for the respondent, presented the case before the AAT.  The Member recorded:

    “

    Ms Henderson on the other hand, in seeking to demonstrate that the impact of the fall and consequent complaints were minor, submitted that Mr Hughes had, after the fall, originally been certified by Dr Kuk to return to work on 11 January 2000. This had been extended by his general practitioner to 17 January 2000. She submitted that Dr Gardner had examined the Applicant on 17 January 2000 and recorded that he had pins and needles in his right hand

    
    
    

    and residual headache after having ridden back from Ulladullah on his motorcycle. He had also been cleared to return to work on that day.

15. Given Mr Hughes’ unreliability, as the Senior Member found, she may have found the decision or decisions as to whether he really did fall or whether he really did injure himself in any such fall somewhat difficult.  However that may be, the Senior Member did not deal with the claim for the short period of total incapacity following the alleged injury (3 to 17 January 2000) and it is, I think, clear that she should have.   Thus she made an error of law.  I would add that it appears to me inescapable that the questions which were not answered as to the fall (if indeed they were not answered:  there are references in the material extracted above which suggest that the Tribunal member accepted, perhaps because the case was run that way, that there was a fall, but the matter is not free from doubt) and whether there was any resultant injury or incapacity.  These should have been answered.

16. The consequence is that the matter should be remitted to the AAT to consider the outstanding aspects of the appeals which were before it.  It is not suggested that there is any fresh or further evidence which could be put before the AAT on the applicant’s behalf to substantiate his claims.  There is no actual or apparent injustice therefore if the Senior Member of the AAT who has considered the claims thus far should complete the task.  The matter will be remitted to her. 

17. In consequence, the appeal to this Court succeeds.  The matter will be remitted to the Tribunal as previously constituted for further consideration in accordance with these reasons and the respondent is to pay the applicant’s costs of the appeal to this Court.

18. I am reminded that the matters submitted to the AAT could have encompassed liability for medical and hospital expenses before 17 January 2000.  These also, it appears, were not abandoned.  If they are not abandoned on remission to the AAT, the AAT for the sake of completeness should deal with that matter too.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:
Dated:             3 February 2003

Counsel for the Applicant:	Ms L Walker
Solicitor for the Applicant:	Richards Lawyers
Counsel for the Respondent:	Mr G Elliot
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 December 2002
Date of Judgment:	10 December 2002