Jessop, Terrence Maxwell v Broken Hill Proprietary Ltd
[1997] FCA 1036
•2 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - Administrative Appeals Tribunal Act 1975 (Cth) - appeal from a decision of the Administrative Appeals Tribunal - whether the Tribunal failed to address and make findings in relation to issues raised by the Seafarers Rehabilitation andCompensation Act 1992 (Cth) - obligation of Tribunal to provide reasons for affirming the decision of the respondent - whether it did provide adequate reasons.
Administrative Appeals TribunalAct 1975 (Cth) ss 43, 44
Seafarers Rehabilitationand CompensationAct 1992 (Cth) ss 3, 4, 26
Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 cited
Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 cited
Opitz v Repatriation Commission (1991) 29 FCR 50 cited
Australia Postal Corporation v Wallace (Tamberlin J, 26 February 1996, unreported) cited
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538 cited
Tubemakers of Australia v Fernandez (1976) 10 ALR 303 cited
TERRENCE MAXWELL JESSOP v
BROKEN HILL PROPRIETARY LIMITED
NG 248 of 1997
BRANSON J
SYDNEY
2 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 248 of 1997
BETWEEN:
TERRENCE MAXWELL JESSOP
APPLICANTAND:
BROKEN HILL PROPRIETARY LIMITED
RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
2 OCTOBER 1997
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Administrative Appeals Tribunal be set aside.
The case be remitted to the Administrative Appeals Tribunal to be heard and decided again by a differently constituted Tribunal.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 248 of 1997
BETWEEN:
TERRENCE MAXWELL JESSOP
APPLICANTAND:
BROKEN HILL PROPRIETARY COMPANY
RESPONDENT
JUDGE(S):
BRANSON J
DATE:
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an “appeal” pursuant to s 44 of the Administrative Appeals TribunalAct 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 7 March 1997. By that decision the Tribunal affirmed a decision of the respondent that the applicant was not entitled to compensation pursuant to the Seafarers Rehabilitationand CompensationAct 1992 (Cth) (“the Act”).
An appeal pursuant to s 44 of the AAT Act is an appeal on questions of law only. The Court does not have jurisdiction to review the decision of the Tribunal on the merits.
It is accepted that the applicant is an “employee” within the meaning of the Act (s 4). Section 26(1) of the Act provides as follows:
“(1) If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
(2)Compensation is not payable for an intentionally self-inflicted injury.
(3) Compensation is not payable for an injury that is not intentionally self-inflicted but is caused by the serious and wilful misconduct of the employee, unless the injury results in death, or serious and permanent impairment.”
It has not been suggested that ss (2) and (3) above have any relevance in the circumstances of this case. For present purposes the Act defines an “injury” as a physical or mental injury arising out of, or in the course of, the employee’s employment.
The questions of law identified by the notice of appeal as arising on the appeal are as follows:
“(a) Whether the Tribunal erred in law in failing to address and make findings in relation to the issues raised by Section 26 of the Seafarers Rehabilitation and Compensation Act, 1982 [sic] (Cth) (“the Act”).
(b) Whether the Tribunal erred in law in failing to take into account relevant considerations.
(c) Whether the Tribunal erred in law in taking into account irrelevant considerations.
(d)Whether the Tribunal erred in law in adopting the wrong approach in determining the issues.
(e)Whether the Tribunal erred in law in that there was no evidence to support one of its findings.”
THE TRIBUNAL’S FACTUAL FINDINGS IN RESPECT OF THE INJURY
The Tribunal had no doubt that on the morning of 5 September 1994, the applicant struck his right knee on an open dishwasher door in the galley of the Iron Carpentaria.
The Tribunal found that, on 4 September 1994, the applicant had committed a serious breach of discipline aboard ship and well knew that disciplinary action would be taken against him for that breach. The reasons of the Tribunal do not reveal the significance, if any, which the Tribunal placed on this finding, or on its finding that the applicant was distressed and seeking reassurance during an interview which he sought with Captain Moss on the evening of 4 September 1994.
It is not disputed that, following the incident on 5 September 1994 when the applicant injured his knee, the Master called a delegates’ meeting of Seamen’s Union representatives aboard the ship and that thereafter the Master made a decision to turn the vessel around and land the applicant at Portland. The Tribunal accepted the evidence of Captain Moss that the reason for this decision was his concern about irrational behaviour exhibited by the applicant. Again, the reasons of the Tribunal do not make clear the significance that it placed on this evidence. Prior to leaving the vessel the applicant was examined by Dr Lee from Portland. He provisionally diagnosed “trivial soft tissue bruising” to the applicant’s knee and noted that the applicant had a“likely borderline personality disorder”.
The Tribunal did not accept the evidence of the applicant that he was lowered from the Iron Carpentaria on to a pilot boat at Portland. It preferred the evidence of Captain Moss that the applicant climbed down the pilot ladder although with a safety harness attached to him. The Tribunal also found that after boarding the pilot vessel, the applicant stood at the aft end of the pilot boat and waved goodbye to the Iron Carpentaria.
In Portland the applicant was taken for an X-ray and the next day was flown back to Newcastle.
MEDICAL EVIDENCE AND THE TRIBUNAL’S FINDINGS THEREON
This recitation of the medical evidence is taken principally from the reasons for decision of the Tribunal.
Immediately after he returned to Newcastle, the applicant consulted his general medical practitioner, Dr Wark. The history taken from the applicant by Dr Wark is set out in a referral letter dated 13 October 1994 that he prepared and addressed to Dr O’Sullivan, orthopaedic surgeon:
“Mr Jessop injured his right knee when he hit it against the edge of a dishwasher on board ship on 5/9/94. He thought he had cut the knee, but when he looked, there was only a mark on the skin. He stated that he walked away without problems, but within fifteen minutes began to experience marked pain in the knee, and also felt a clicking as he moved. He also began to get spasms of pain in the upper right calf, and by the end of twenty four hours he was getting pain radiating up to the inside of his right thigh. The shore doctor said Xrays were normal.
By the time I saw him on 7/9/94, he was in pain if he attempted to weight bear, and was most comfortable if he sat with the right knee flexed at 20 to 30 degrees and kept very still. He was tender on the medial aspect of the right knee, behind the knee and in the upper calf, and in the medial proximal thigh. Although complaining of burning testes, the testes were non-tender. His problem seemed to be a musculoskeletal reaction to the described injury, though it was not clear why reaction was so widespread.
Pain has persisted in the areas described with fluctuations up and down related to attempted mobilisations, physiotherapy and rest, with the general trend till recently being improvement. There are two other features requiring mention however. Without any signs of toxicity he had a pustular rash develop behind the right calf on 8/9/94. This was not shingles, and settled without treatment. He also had a vague bruise in the medial upper right calf in the first week after the injury which made me wonder whether the anteromedial knee injury may have caused a phlebitic reaction through impact with the long saphenous vein, explaining the spreading of the pain.”
On 10 September 1994, the applicant was examined by Dr Kochanski on behalf of his employer. Dr Kochanski reported:
“I feel Mr Jessop has sustained a contusion to the right knee in keeping with the incident described. The incident occurred some seven days before his visit and I would have expected his symptoms to have improved....
I feel that should his symptoms not be significantly improved in a further week to ten days, then an orthopaedic specialist opinion should be sought and possibly further investigation such as either isotope or CT scanning of the injured area.”
The applicant attended at the Emergency Department of the John Hunter Hospital, Newcastle, to obtain a second opinion to that of Dr Wark. The Clinical Superintendent of that department concluded a report to the applicant’s solicitor, by advising that -
“No clear diagnosis has been made to explain Mr Jessop’s symptoms at the time of his attendance at John Hunter Hospital.”
Dr O’Sullivan reported to Dr Wark on 24 October 1994. In that report he stated:
“My provisional diagnosis is that 6 weeks ago he had a reasonably heavy blow to the inner aspect of his upper right tibia which may well have disrupted his right anterior cruciate ligament as well as his medial collateral ligament which has since healed. Bruising over the area of the saphenous nerve may well cause adductor spasm and this can certainly radiate into his testicles. Similarly, the vascular symptoms of swelling and coldness in his foot can be explained by soft tissue injury at this level. The history of the rash is somewhat an enigma to me but considering his ESR is 2, white cells were normal and the rash has settled down I am not too concerned.”
The applicant was examined on 6 February 1995 by Dr Middleton, a specialist in rehabilitation medicine. Dr Middleton’s report concluded as follows:
“Overall, on the basis of the history, clinical findings and X-rays seen, I concluded that this man had suffered significant jarring injury to his right knee and had subsequently developed pains centred around the knee but extending proximally and distally through the right leg and I felt these could be attributed to the effects of the jarring injury. It may be that the radiating pains were due to some form of post traumatic neuralgia affecting the long saphenous nerve but I felt there was probably also a component of direct trauma, probably in the way of reflex protective muscle spasm resulting from the sudden impact through his adductor musculature and medial gastrocnemius muscle belly contributing to his symptoms in the way of a chronic soft tissue strain type of problem... .
Overall, on the longer term, this man’s prognosis could only be considered guarded at this stage ... .”
The applicant was also examined on a number of occasions by Dr Pacey, a visiting medical officer in rehabilitation medicine at the Royal Newcastle Hospital. She found diagnosis for him difficult, but concluded:
“He certainly appears to have suffered injury to the medial aspect of the leg and whether he suffered firm damage to the collateral ligament or some local neurapraxia is difficult to say, however, I feel that he is beginning to make a recovery from his knee problems at this stage.”
A Dr Carr, a rheumatologist to whom the respondent’s solicitors referred the applicant, expressed the following opinion:
“This is a most unusual case. The onset of his problems seem to relate to trivial injury and he then developed very severe pain radiating up to the L3 or L4 dermatome on the inside of his right leg... I cannot find disability...
It does not appear to me that his pain really bears any relationship to the trivial injury that he had. Subjectively, he tells me that he is still incapacitated and limping and has pain but I cannot find objective signs.”
In a report dated 13 November 1995, Dr Pollack, a consultant in rehabilitation medicine at the John Hunter Hospital, stated:
“Although I completely accept Prof. Holland’s statement that there is no evidence of any nerve impairment I have to reiterate that this would be on the basis of testing for motor and sensory function. I do not believe that it excludes a diagnosis of causalgia... I think that there probably has been an associated bleed posteriorly into the proximal media head of gastrocnemius and this has probably resulted in some scarring and adhesions with secondary tightness and pain... .
On the other hand he has this progressive pain from the right buttock into the right thigh. I believe that this is a pain of an entirely different aetiology, and probably unrelated... Having said that it is my experience that people who take large amounts of strong analgesics (which of course 8-12 Panadiene Forte tablets a day is) are more prone to develop aches and pains, and potentially ‘muscle pain syndromes’.”
Dr Pollock gave evidence before the Tribunal. He gave evidence that it was his hypothesis that the applicant was suffering from a reflex sympathetic dystrophy (similar to causalgia), being referred pain of the leg and into the body as a result of nerve damage to a nerve in the leg caused by the blow from the open dishwasher door. It was his view, however, that the applicant’s pain in the upper shoulder and neck, and hip and buttocks was not related to his knee injury.
The Tribunal in its reasons notes:
“In cross-examination Dr Pollack conceded that there was no objective evidence to support his hypothesis and that his diagnosis was no more that a possible explanation as opposed to a probable one and that his degree of confidence in his hypothesis was relatively low and that it depended upon his accepting the patient’s history and symptoms.”
Dr Griffiths, a consultant neurologist, in a report dated 19 February 1996 supported the diagnosis of causalgia. In that report he stated:
“Mr Jessop reports relatively minor trauma to the right knee having occurred on the 5/9/94. His pain has been the main feature of his disorder to the point that he has required the use of a narcotic analgesic in order to sleep and function. The condition of causalgia can occur with relatively minor trauma and there is no objective investigative tests that will confirm or rule out this disorder. I feel Mr Jessop’s current pain state is one of causalgia and that this occurred as a direct result of the trauma to the right knee of the 5th September 1994.”
The Tribunal in its reasons states:
“Essential to accepting the diagnosis of Dr Pollack and also that of Dr Griffith is an acceptance of the Applicant’s history of events. For reasons expressed below I do not accept the Applicant’s evidence in its totality.”
It is not easy to identify how much of the remainder of its reasons for decision are intended to constitute the “reasons expressed below”. Immediately below the above passage appear certain factual findings which include the finding that the applicant did strike his knee on an open dishwasher door on 5 September 1994 and the finding that the applicant on the “previous day committed a serious breach of discipline aboard ship and was distressed and seeking reassurance from Captain Moss during an interview with him”. The Tribunal refers at this point in its reasons to the opinion of Dr Lee that the applicant was suffering from a likely borderline personality disorder and to Captain Moss’s concern about the applicant’s irrational behaviour. It also refers to its finding, contrary to the evidence of the applicant, that the applicant climbed down the pilot ladder to the pilot boat at Portland.
Thereafter the reasons of the Tribunal give consideration to evidence concerning psychiatric assessments of the applicant. Such assessments do not suggest that the applicant suffers from a psychiatric disorder which could explain his orthopaedic symptoms. The Tribunal notes the opinion of Dr White, Psychiatrist, that the applicant “does not currently suffer from a physical or psychiatric disability”; however, it further notes that Dr White would apparently be prepared to revise his opinion, presumably as to whether the applicant was currently suffering from a physical disability, if Dr Pollack’s diagnosis of causalgia proved to be correct.
The Tribunal’s reasons conclude as follows:
“Taking into account all of the evidence I find that the Applicant’s behaviour aboard the Iron Carpentaria was so abnormal that the Master decided that, in the interests of safety both of the vessel and its crew and that of the Applicant, he should be evacuated from the vessel. To this end the Master turned the vessel around and back-tracked towards Portland in Victoria, a step which was not taken lightly. Since that time the Applicant has continued to experience symptoms out of proportion to the original injury. Medical opinion is divided but even his Treating Specialist, Dr Pollack, admits that there are no objective signs to account for a major reaction to what was minor trauma. Dr Griffith also states that there are no objective tests to support his diagnosis and his opinion must be contrasted with that of Professor Holland. Dr Pollack has an hypothesis as to cause but is not confident as to this being the explanation for the Applicant’s pain. I do not profess in the plethora of medical reports before me to adduce what is the cause of the Applicant’s pain but I am not satisfied that its cause is the minor blow suffered by the Applicant aboard the Iron Carpentaria on 5 September 1994. The decision under review will therefore be affirmed.”
CONSIDERATION
Section 43 of the AAT Act, in the circumstances of this case, imposed upon the Tribunal the obligation to give reasons in writing for its decision. Such reasons were required to “include its findings on material questions of face and a reference to the evidence or other material on which those findings were based” (s 43(2B)).
The obligation which rests on courts and certain tribunals to give reasons for their decisions provides not only a discipline upon them; it provides important protection to those whose disputes are heard before them and helps protect public confidence in the courts and tribunals. In Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88 Sheppard J, in speaking of the obligation on the Pharmaceutical Benefits Remuneration Tribunal to give reasons for its decisions, stated:
“The provision of reasons is an important aspect of the tribunal’s overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the tribunal’s conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal’s reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The tribunal is required to state publicly what its reasoning process is. This is a sound administrative safeguard tending to ensure that a tribunal such as this properly discharges the important statutory function which it has.”
It is necessary in determining whether adequate reasons have been given by a tribunal to read the reasons of the tribunal as a whole to see if there has been substantial compliance with the obligation (Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 per Lockhart J at 151-152 and Sheppard J at 155-157; Opitz v Repatriation Commission (1991) 29 FCR 50 per Hill J at 61). As Tamberlin J pointed out in Australia Postal Corporation v Wallace (Tamberlin J, 26 February 1996, unreported) -
“s 43 [of the AAT Act] is not to be construed with a pedantic eye but in a practical common sense way in order to determine, in substance, whether the decision conveys sufficient of the decision making process to enable the parties and other interested persons to properly understand it.”
Consideration of the question of whether the Tribunal in this case provided reasons for its decisions in conformity with its statutory obligation requires identification of the issues which the Tribunal was required to determine. The issues before the Tribunal are to be identified by reference to s 26 of the Act. Since it was not in dispute that the applicant was an “employee” within the meaning of the Act, such issues were:
(1) did the applicant suffer an “injury” within the meaning of the Act?
(2)if he did, did that injury result in his “incapacity for work” or “impairment” within the meaning of the Act?
The Tribunal expressly found that on the morning of 5 September 1994, the applicant struck his right knee on an open dishwasher door in the galley of the Iron Carpentaria. The Tribunal appears to have further found that the applicant suffered a physical injury as a consequence of the blow to his knee as it found that “[s]ince that time the Applicant has continued to experience symptoms out of proportion to the original injury” [emphasis added].As a physical injury suffered by an employee in the course of his or her employment is an “injury” within the meaning of the Act (s 3 of the Act), the Tribunal is therefore to be assumed to have found that the applicant did suffer an “injury” within the meaning of the Act.
However, the Tribunal did not anywhere in its reasons expressly address the issue of whether such injury to the applicant’s knee resulted in his “incapacity for work” or “impairment” within the meaning of the Act.
The ultimate finding of the Tribunal was that it was not satisfied that the cause of the applicant’s pain was the minor blow to his knee which he sustained on 5 September 1994. The pain to which the Tribunal refers in reaching such conclusion is presumably the pain which, on the applicant’s case, he has suffered since 5 September 1994. It is not entirely clear whether the Tribunal intended by so expressing its conclusion, to indicate that it found that the applicant has in fact suffered such pain. However, in the absence of an express finding to the contrary, the better view of its conclusion appears to be that it did. There is certainly no finding by the Tribunal that the applicant did not suffer the pain that he described in his evidence before the Tribunal, and to the numerous medical practitioners whom he has seen, or alternatively that, although he suffered some pain, it was pain in a lesser degree than that which he described.
If, as it appears that it did, the Tribunal accepted that the applicant has, since the time of the blow, suffered the pain that he has alleged that he has suffered, this of itself offers some support for a conclusion that the blow caused such pain.
The question of whether inferences may appropriately be drawn from a sequence of events was considered by the High Court in Adelaide Stevedoring CompanyLimited v Forst (1940) 64 CLR 538. In that case, a waterside worker of sixty three years of age in the course of his work undertook a task involving muscular exertion which he was in a difficult position to perform. Although he had appeared to be in normal health before undertaking this task, shortly thereafter he collapsed, lost consciousness and died within a very short time. On his widow’s claim under the Workers’ Compensation Act 1932-1935 (SA), the medical witnesses called were in agreement that he had died of cardiac insufficiency, but they differed in opinion as to whether coronary thrombosis was the cause, and, if so, whether it had any relation to the exertion which he had undertaken. Rich ACJ, after outlining the above sequence of events on the day of the worker’s death, went on at 563:
“I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology.”
The other members of the High Court took essentially similar approaches to the question of the causative link between exertion and the formation of the coronary thrombosis which caused the worker’s death. The above remarks of the Acting Chief Justice have found more recent support in the High Court in Tubemakers of Australia v Fernandez (1976) 10 ALR 303 (see per Mason J, with whom Barwick CJ and Gibbs J agreed, at 311-312 and per Murphy J at 312.)
In my view, having regard to the express findings of the Tribunal, and those which are apparently to be inferred from its reasons, the Tribunal was obliged to express its reasons for not being satisfied that the applicant’s pain was caused by the blow to his knee on 5 September 1994. The reasons of the Tribunal do not, in my view, sufficiently convey to a reader the Tribunal’s reasoning process in this regard. It cannot be overlooked, first, that there was nothing before the Tribunal to suggest that the applicant had suffered any damage to his right knee or leg before the blow on 5 September 1994, or any relevant fresh injury thereafter, and secondly, that expert medical evidence before the Tribunal showed that the inference of a causal connection between the blow to the applicant’s knee on 5 September 1994 and, at least, certain of the pain described by him was open. The possibility that all of the pain described by the applicant might not have the same aetiology does not appear to have been considered by the Tribunal, although this possibility is clearly raised by some of the medical reports.
I note also that even if it be accepted that none of the pain which was of ongoing concern to the applicant was caused by the blow to his knee on 5 September 1994, the Tribunal was obliged to consider whether any relevant incapacity for work within the meaning of the Act resulted from such blow. Its reasons for decision do not indicate that it did so.
I conclude that the Tribunal erred in law in failing to give reasons for its decision which “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (s 43 of the Act). Ground (a) of the notice of appeal is therefore upheld.
It is not necessary, in my view, for the alternative grounds of appeal set out in the notice of appeal to be considered separately.
The order of the Court will be that the decision of the Administrative Appeals Tribunal of 7 March 1997 is set aside and the case remitted to the Administrative Appeals Tribunal to be heard and decided again by a differently constituted Tribunal.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson
Associate:
Dated:
Counsel for the Applicant: Mr. J.B. Pender Solicitor for the Applicant: Paul A. Curtis & Co Counsel for the Respondent: Mr J.D. Hislop QC with
Mr J. WallaceSolicitor for the Respondent: Sparke Helmore Date of Hearing: 13 August 1997 Date of Judgment: 2 October 1997
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