K&S Freighters Pty Ltd v McQueen-Thomas

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FEDERAL COURT OF AUSTRALIA

K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518

File number: VID 973 of 2016
Judge: COLLIER J
Date of judgment: 11 October 2018
Catchwords: COMPENSATION – statutory appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where the employee had a pre-existing shoulder injury – whether Tribunal erred in its interpretation of ss 5B and 14 of the Act – whether the Tribunal erred in its interpretation of s 7(7) of the Act
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 7, 9, 14, 15

Cases cited:

Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280

Commonwealth of Australia v Christoffelsz (1988) 18 FCR 415

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297

Crick & Bennett [2018] FamCAFC 68

Gaffey v Comcare [2015] FCA 1024; (2015) 239 FCR 76

Ilsley v Wattly Australia Pty Ltd [1997] FCA 427
Date of hearing: 28 March 2018
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 63
Counsel for the Applicant: Mr A Berger
Solicitor for the Applicant: Clarke Legal
Counsel for the Respondent: Mr M Carey with Ms K Brady
Solicitor for the Respondent: Maurice Blackburn

ORDERS

VID 973 of 2016
BETWEEN:

K&S FREIGHTERS PTY LTD

Applicant
AND:

ANDREW MCQUEEN-THOMAS

Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

11 OCTOBER 2018

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

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


REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

  1. This is an appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), against a decision of the Administrative Appeals Tribunal (the Tribunal), wherein the Tribunal set aside a decision of the applicant K&S Freighters Pty Ltd and substituted its decision that Mr McQueen-Thomson was entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).

  2. Appeals to the Federal Court from the Tribunal pursuant to s 44 are in the original jurisdiction of the Court and are confined to questions of law. K&S Freighters Pty Ltd, in summary, contends that the Tribunal made two fundamental errors of law: first, concerning s 14 of the SRC Act and, second, concerning s 7(7) of the SRC Act. It identifies the following alleged errors of law:

    6.Did the Tribunal fail to consider a relevant factor or misapprehend the matters of which it had to be satisfied in order to find a liability to pay compensation pursuant to s 14 of the SRC Act?

    7.Did the Tribunal misconstrue and misapply s 5A, 5B and/or s 14 of the SRC Act, in concluding Mr McQueen-Thompson’s left shoulder condition(s) resulted in incapacity for work?

    8.Did the Tribunal…

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Details
Case
[2018] FCA 1518
Decision Date

CaseChat Overview and Summary

K&S Freighters Pty Ltd, the employer, sought judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) which found in favour of Mr McQueen-Thomas, the employee, in his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The employee claimed compensation for an injury to his left shoulder which he suffered during the course of his employment as a driver for the employer. The employer argued that the injury was not compensable because the employee had made a wilful and false representation in relation to a disease or aggravation of such a disease. The Tribunal rejected the employer’s argument and found that the employee’s injury was compensable. The employer appealed to the court, arguing that the Tribunal had erred in its interpretation of sections 5B and 14 of the Act and section 7(7) of the Act.

The court found that the Tribunal had not erred in its interpretation of the relevant sections of the Act. The court held that the Tribunal was correct in finding that the employee had suffered an injury to his left shoulder which had resulted in his incapacity for work or impairment. The court found that the Tribunal had properly considered the evidence and had made findings which were supported by the evidence. The court held that the Tribunal had correctly rejected the employer’s argument that the employee’s injury was not compensable because of the operation of section 7(7) of the Act. The court found that the Tribunal had properly considered the evidence and had made findings which were supported by the evidence. The court held that the Tribunal had correctly found that the employee’s injury was not merely an aggravation of a prior symptomatic ailment, but the result of an employment contribution to the development and the worsening of an ailment.

The court dismissed the employer’s appeal and ordered that the application be dismissed with costs. The court found that the Tribunal had properly considered the evidence and had made findings which were supported by the evidence. The court held that the Tribunal had correctly found that the employee’s injury was compensable and that the employer was liable to pay compensation to the employee. The court found that the Tribunal had properly considered the evidence and had made findings which were supported by the evidence. The court held that the Tribunal had correctly rejected the employer’s argument that the employee’s injury was not compensable because of the operation of section 7(7) of the Act.

Orders

Orders of the court

1. The application be dismissed with costs.

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

Background

Background to the litigation

I note the potential for confusion given that “the applicant” in the Tribunal was Mr McQueen‑Thomson, but in the appeal “the applicant” is the employer K&S Freighters Pty Ltd (and, of course, there is similarly position reversal in respect of “the respondent”). It is convenient that I refer to Mr McQueen-Thomson as “the employee” and K&S Freighters Pty Ltd as “the employer”, to avoid any confusion.BACKGROUND The employee was born in 1953, and has worked most of his life as a professional driver of vehicles including buses, trucks and taxis. He is left-hand dominant. The employee commenced working with the employer in 2005, although prior to then he had worked for a business which was taken over by the employer. The employee ceased working for the employer when he was dismissed on 29 July 2014 as result of a driving incident that had taken place in the preceding week. At relevant times the employee worked at least 55 hours per week including overtime. The employee’s work largely involved “mini bulk tank work”, including the transportation of liquefied refrigerated carbon dioxide (also known as “dry ice”). The employee generally worked with 4‑tonne tankers but sometimes also worked with 8‑tonne tankers. In the ordinary course the product on the tanker would be unloaded via a hose and pumped into a vessel at the delivery points. Relevantly, hoses used for unloading would be manually connected by the employee either at chest height or shoulder height, depending on the vessels at the delivery point. The employee indicated that the hoses were heavy and that lifting them involved a deal of physical strain. A typical vessel at a delivery point could take between approximately 20 and 25 minutes to fill, and there would be up to four vessels at some delivery points. Once the vessels were filled, the hose would be disconnected and retracted. The employee frequently made up to eight metropolitan deliveries and an additional four country deliveries per day. On 17 December 2012, the employee suffered an injury to his right shoulder. At the time of the injury, the employee was assisting a forklift operator offload a container containing approximately 300kg of product. Because of wet and slippery conditions the employee lost his footing while standing on the side of his truck, and fell onto concrete. The employee continued working and completed his deliveries for the day. At the end of the day, the employee attended at the company doctor, who advised the employee to take several days off work, which the employee did. The employee returned to work throughout December 2012, January 2013 and February 2013, but the pain in his right shoulder persisted. The employee attended his general practitioner at a clinic at Coolaroo in Victoria. The general practitioner recommended that the employee undergo an ultrasound, and the employee did so on 27 February 2013. The employee was subsequently referred to Dr Anita Boecksteiner, an orthopaedic surgeon, who advised the employee that he required surgery for a torn rotator cuff in the right shoulder. At about this time, the employee lodged a claim for compensation from the employer for the injury to his right shoulder. The employee underwent shoulder surgery on 2 May 2013.

Evidence

Evidence Before The Court

The employee lodged a claim for compensation in respect of his left shoulder on 5 June 2014. The employer denied the claim on 30 June 2014. By statement dated 26 June 2015 the employee sought review of the employer’s decision in the Tribunal.MEDICAL EVIDENCE BEFORE THE TRIBUNAL Numerous medical practitioners gave evidence before the Tribunal. Dr Mui Kak Lim was the employee’s general practitioner who worked at the Coolaroo clinic. Dr Lim gave evidence that his notes recorded a consultation with the employee on 29 June 2010, in which he noted that the employee had poor range of abduction in his supraspinatus and made a differential diagnosis of a rotator cuff injury. Dr Lim referred the employee for imaging, which revealed a full thickness tear in the supraspinatus. On 17 July 2010, Dr Lim referred the employee to an orthopaedic surgeon. Dr Slesenger is a specialist occupational physician who was consulted by the employee from 2009. Dr Slesenger prepared a report on 13 December 2015 at the request of the employee’s legal representative in which Dr Slesenger stated that the employee had sustained a left shoulder supraspinatus tear and acromioclavicular joint arthritis. Dr Slesenger also states that there was evidence of adhesive capsulitis. Dr Slesenger also reported on the condition of the employee’s right shoulder, concluding that the employee had osteoarthritis at the acromioclavicular joint, a rotator cuff tear and bursitis and had responded reasonably well to surgical intervention. Dr Slesenger considered that the employee’s left shoulder impairment dated back to 2006, and that the activities of 2012 aggravated this pre-existing left shoulder impairment. Dr Slesenger also opined that the employee’s right shoulder impairment was secondary to the injury in December 2012, which in turn further aggravated his pre-existing left shoulder impairment. Dr Michael Khan is an orthopaedic surgeon who examined the employee on 15 April 2015, and made reports dated 4 June 2015 and 1 December 2015. Dr Khan stated that the employee’s left shoulder movement was limited at the time of the examination and also noted that the employee continued to experience symptoms in his right shoulder, despite the surgery. Dr Khan’s opinion was that the employee had a left shoulder condition that was contributed to by his employment with the employer. Dr Khan noted pre-existing degenerative changes in the left acromio-clavicular joint and glenohumeral joint which gradually flared up when the employee returned to work after the surgery to his right shoulder as a result of mainly using his left shoulder in work activities. In his second report, after reviewing reports from Dr Powell and x-rays from 2010, Dr Khan’s opinion was that the employee had pre-existing degenerative arthritis and a large bone spur which were further aggravated following the surgery to his right shoulder as a result of the employee’s work with the employer. Dr Gerard Powell is also an orthopaedic surgeon who examined the employee at the request of the employer on 27 April 2015 and made reports dated 27 April 2015 and 6 July 2015. Dr Powell was similarly of the view that the employee’s employment with the employer played a significant role in the development of the pathologies in both shoulder conditions, especially because of the repetitive overhead use of the employee’s arms during his work. Dr Powell further considered that the mechanism of injury was consistent with his conclusion of a full thickness tear of the supraspinatus being work related. Dr Powell additionally noted that there was no pre-existing history of symptoms relating to the left or right shoulders, other than a “niggle” of pain not requiring specific treatment.THE DECISION OF THE TRIBUNAL

Decision

Reasons for decision

Dr Gerard Powell is also an orthopaedic surgeon who examined the employee at the request of the employer on 27 April 2015 and made reports dated 27 April 2015 and 6 July 2015. Dr Powell was similarly of the view that the employee’s employment with the employer played a significant role in the development of the pathologies in both shoulder conditions, especially because of the repetitive overhead use of the employee’s arms during his work. Dr Powell further considered that the mechanism of injury was consistent with his conclusion of a full thickness tear of the supraspinatus being work related. Dr Powell additionally noted that there was no pre-existing history of symptoms relating to the left or right shoulders, other than a “niggle” of pain not requiring specific treatment.THE DECISION OF THE TRIBUNAL Before the Tribunal, the employee argued that the employer should be required to determine the employee’s specific entitlements to compensation. The employer maintained that the employee was not entitled to compensation because of the operation s 7(7) of the SRC Act, which essentially precludes compensation in the event that an employee makes a wilful and false representation in relation to a disease suffered by an employee or an aggravation of such a disease. In the Tribunal the employee gave sworn evidence, and medical evidence was given on his behalf. The employer called only medical evidence. The Tribunal examined relevant legislative provisions and observed:68.I should say at the outset that I am satisfied, on the balance of probabilities that the Applicant has suffered an injury to his left shoulder and that this has resulted in his incapacity for work or impairment.69.As I see the matter, the question of the existence of an injury and subsequent incapacity was not in issue. It was not suggested that the Applicant was fabricating his evidence. Nor was it suggested that the Applicant was exaggerating or overstating the nature of his injury. Indeed, the Applicant was described as stoical by one witness.70.There are, however, a number of ways of characterising this condition within the terms of the Act. It could be characterised as an injury which is an injury (other than a disease). It could also be characterised as an injury which is a disease. If a disease it could be an ailment or an aggravation of an ailment.71.However, even if the Applicant’s left shoulder condition would otherwise be compensable under the Act on whatever basis, it could still fail to be compensable if the provision in section 7 (7) of the Act applies so as to exclude him. The Tribunal noted that the employee had referred to two specific incidents of sharp pain occurring in May 2014, but also had regard to the employee’s evidence that he was unclear as to how to report his injury because he could not pinpoint a specific event which precipitated it such as a fall or an accident in the ordinary sense (at [75]). The Tribunal was not satisfied that the incidents of May 2014 were occasions of an injury simpliciter.

Ratio Decidendi

Legal Principle Established

Section 7 of the SRC Act contains various provisions concerning particular considerations for ‘diseases’. Relevantly for present purposes s 7(7) provides:A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease. CONSIDERATION Ground of appeal 1 The first ground of appeal was that:1.The Tribunal erred in law by concluding Mr McQueen-Thomson suffered incapacity for work as a result of a left shoulder condition(s), without considering whether his incapacity for work was the result of ‘an injury’, within the meaning of ss5A (1), 5B (1) and 14 (1) of the SRC Act, as distinct from his non-employment related pre-existing left shoulder ailment that did not constitute such ‘an injury’. In summary the employer submitted:·There was no basis for the Tribunal’s conclusion at [68] that the employee had suffered an injury to his left shoulder which had resulted in his incapacity for work or impairment·The Tribunal erred at [69] in stating that the existence of an injury and subsequent incapacity was not in issue·Section 14 of the SRC Act refers to an injury resulting in death, incapacity for work or impairment. Only incapacity is relevant in this case. ·The only comments in the Tribunal’s decision concerning incapacity were at [30], [68], [69] and [97]. The Tribunal’s finding at [97] that the employee cannot drive trucks is the only finding in respect of incapacity. ·While the employer accepts that the employee has an injury, and further that he suffers an incapacity for work, the Tribunal did not squarely engage with the question the Tribunal needed to ask itself under s 14 of the SRC Act read in light of s 4(9) of the SRC Act, namely whether the injury caused the incapacity. It was critical that the Tribunal find that link in light of the evidence of a strong underlying pre-existing problem with the left shoulder, and evidence that the employee continued to work full-time for two months after the workplace injury of May 2014. The employee submitted that:·In the Tribunal the key issue was whether the employee’s condition was an injury simpliciter, a disease or the aggravation of a disease.·In the Tribunal the employer argued that the condition of the employee should be regarded as a disease, and therefore he was precluded from claiming compensation by the operation of s 7(7). The employer did not argue any particular fact or circumstance relating to incapacity for work·The connection between the injury to the employee and the employee’s incapacity was not contested by the employer in the Tribunal. It was for this reason that the Tribunal observed that the issue was not in contention.·At the end of the discussion concerning disease and in circumstances where the Tribunal rejected the submission that there was an injury other than a disease, the Tribunal made explicit findings at [97] that the employee’s injury was not merely an aggravation of a prior symptomatic ailment, but the result of an employment contribution to the development and the worsening of an ailment. These findings were referable to the precise language of the SRC Act.