Kemp v K and S Freighters Pty Ltd

Case •

[2012] FMCA 15

•

13 January, 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEMP v K & S FREIGHTERS PTY LTD [2012] FMCA 15

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – no questions of law stated in notice of appeal – no jurisdiction – application dismissed.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – questions of law – no questions of law stated in notice of appeal – questions formulated in written submissions and argument.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether AAT was required to disregard s.6(3) of the Safety, Rehabilitation and Compensation Act 1988 where claimed injury was within the definition of injury in s.5A of that Act – question not answered because no discernable effect upon outcome.

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – “no evidence” grounds – consideration of evidence before AAT.
Administrative Appeals Tribunal Act 1975, ss.44(1), 45(1)
Administrative Decisions (Judicial Review) Act 1977, ss.5(1)(e), 5(1)(f), 5(1)(h), 5(1)(j), 5(2)(a), 5(2)(b)
Safety, Rehabilitation and Compensation Act 1988, ss.5A, 6(1), 6(3), 14, 14(3)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Comcare v Etheridge (2006) 149 FCR 522
Commissioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Rana v Repatriation Commission [2011] FCAFC 124
Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Sharp Corp (Aust) Pty Ltd v Collector of Customs (1995) 59 FCR 6
TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175
Walterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555
Applicant: MICHAEL ROBERT KEMP
Respondent: K & S FREIGHTERS PTY LTD
File Number: BRG 644 of 2011
Judgment of: Jarrett FM
Hearing date: 7 October, 2011
Date of Last Submission: 7 October, 2011
Delivered at: Brisbane
Delivered on: 13 January, 2012

REPRESENTATION

Counsel for the Applicant: Mr Arnold
Solicitors for the Applicant: Rees R & Sydney Jones
Counsel for the Respondent: Mr Berger
Solicitors for the Respondent: Clarke Legal, Solicitors

ORDERS

  1. The Notice of Appeal filed on 14 June, 2011 is dismissed.

  2. The applicant pay the respondent’s costs of and incidental to the application to be assessed according to the Federal Court Rules 2011 up to and including 15 July, 2011 and thereafter according to schedule 1 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 644 of 2011

MICHAEL ROBERT KEMP

Applicant

And

K & S FREIGHTERS PTY LTD

Respondent

REASONS FOR JUDGMENT

  1. By his Notice of Appeal filed on 14 June, 2011 in the Federal Court of Australia Michael Kemp appeals, pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975, a decision of the Administrative Appeals Tribunal given on 11 May, 2011.  Although the appeal was commenced in the Federal Court, it was remitted for hearing and determination in this Court by order of Logan J made on 15 July, 2011.

  2. The decision of the Tribunal was to affirm the decision there under review before it.  The decision under review before the Tribunal was made on 6 May, 2009 by a “reconsideration officer” for and on behalf of the respondent.  The decision rejected a claim made by Mr Kemp for rehabilitation expenses and compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for injuries he claimed he sustained in a work related accident 20 May, 2008.

  3. This appeal, and the applications which precede it, arise out of a truck rollover which occurred on 20 May, 2008.  Mr Kemp was driving a prime mover hauling a trailer loaded with magnesite along a gravel road in central Queensland.  He had to negotiate a left hand turn which had a very acute angle.  As he was negotiating the turn, the truck and trailer rolled onto their right sides.  Mr Kemp was thrown forward and partly through the windscreen of the vehicle.  He claimed that he suffered a significant injury to his back in the accident for which he was entitled to compensation under the SRC Act.

The Nature of this appeal

  1. The use of the term “appeal” is in some senses misleading. These proceedings are within the original jurisdiction of this Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581; TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [1].

  2. An appeal pursuant to s.44(1) of the AAT Act does not permit a reconsideration of the merits of the decision under review. The appeal is on a question of law. In Comcare v Etheridge (2006) 149 FCR 522, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms:

    13 The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 (‘Birdseye’) by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies ‘on a question of law’ the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53 r 3(2)(b).

    14 The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.

    15   In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that:

    ‘If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.’

    16 A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye at [18]:

    ‘In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’

    17   Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)‑(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal.  If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

  3. The most recent consideration of the approach to an appeal under s.44(1) of the AAT Act is to be found in the Full Court of the Federal Court’s decision in Rana v Repatriation Commission [2011] FCAFC 124. In that case Kenny, Stone and Logan JJ said:

    [11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court "on a question of law". The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178 Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-325 (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at 300-302 and Comcare v Etheridge (2006) 149 FCR 522 at 526-527. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.

    (my emphasis)

The Notice of Appeal

  1. The present appeal was prosecuted by Mr Kemp on the basis of his Notice of Appeal filed on 14 June, 2011 in which the relevant questions of law are said to be specified.  The Notice of Appeal purports to specify seven questions of law.  However, only some are stated as questions.  None of them state a question of law as explained in the authorities set out above.  The questions of law are said to be:

    2.1 The meaning, application and construction of s.6(3) of the Safety, Rehabilitation & Compensation Act 1988 (Cth);

    2.2 The meaning, application and construction of s.14(3) of the Safety, Rehabilitation & Compensation Act 1988 (Cth);

    2.3 The sufficiency or otherwise of the Reasons for Decision given by the Tribunal;

    2.4 Whether in reaching its decision of 11 May 2011 the Tribunal took into account irrelevant considerations in its application of the Safety, Rehabilitation & Compensation Act 1988 (Cth);

    2.5 Whether in reaching its decision of 11 May 2011 the Tribunal took into consideration all relevant considerations in its application Safety, Rehabilitation & Compensation Act 1988 (Cth);

    2.6 Whether the reasoning applied by the Tribunal in reaching the decision of 11 May 2011 was according to law;

    2.7 Whether the decision of the Tribunal of 11 May 2011 was contrary to the evidence.

  2. None of the above purported questions of law are in fact pure questions of law. The Notice of Appeal is defective and, on its face, does not engage s.44(1) of the AAT Act. I would dismiss the appeal on this basis alone. As demonstrated by Rana, without a properly formulated question of law there is no subject matter for the appeal and the Court is without jurisdiction to entertain the proceeding.

  3. I observe that purported questions 2.4, 2.5, 2.6 and 2.7 echo the grounds of judicial review provided for in ss.5(1)(e) (as expanded on in s.5(2)(a) and (b), 5(1)(f), 5(1)(h) and 5(1)(j) of the Administrative Decisions (Judicial Review) Act 1977, tending to confirm that no question of law is involved. 

  4. However, in the course of oral submissions, Counsel for Mr Kemp attempted to formulate a question of law for consideration.  The question so formulated was “whether there was evidence available to the Tribunal to make the findings that it did”.  In the event that I am wrong about the sufficiency of the Notice of Appeal, I shall consider the arguments raised by Mr Kemp further, having regard to the matters raised in his written submissions and to the question formulated orally by Counsel.

  5. The written submissions made on Mr Kemp’s behalf summarise his argument as follows:

    20. In this appeal it is argued as follows-

    (a) that the Senior Member made an error in law in applying the disentitling provisions of s.6(3) of the SRC Act to the conduct of Mr. Kemp because on a proper application of the act the section does not apply to the application for compensation;

    (b) that even if the provisions of s.6(3) of the SRC Act do apply there was no evidence before the Tribunal capable of establishing that Mr Kemp voluntarily and unreasonably submitted to any abnormal risk of injury by failing to wear a seatbelt on 20 May 2008 - meaning that the Senior Member erred in law in making such a finding;

    (c) that there was no evidence before the Tribunal capable of establishing that the injury suffered by Mr Kemp, was caused by his serious and wilful misconduct - meaning that the Senior member erred in law in making such a finding;

    (d) that any finding as to the injuries suffered by Mr Kemp other than the finding that on 20 May 2008 Mr Kemp suffered an L3/4 and L4/5 disc protrusion was not available on the evidence before the Tribunal and that such a finding was illogical, contrary to the evidence and therefore amounted to an error of law.

  6. It is apparent that the matters set out in Mr Kemp’s written submissions bear but the vaguest resemblance to the “questions of law” raised in the Notice of Appeal.  The question of law formulated orally bears upon the matters raised in subparagraphs 20(b) – 20(d) of the written submissions set out above.

  7. Mr Kemp’s arguments addressed the matters set out in his written submissions and extracted above.  Counsel did not refer to the purported questions of law set out in the Notice of Appeal.  In deference to the way in which the matter was argued for Mr Kemp, I shall do the same, but I need to do so in the context of a question of law arising from the Tribunal’s decision.

  8. Before doing so, however, it is important to point out that not every error of law will amount to a question of law for the purposes of an appeal pursuant to s.44(1) of the AAT Act: Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 at [61]-[62]; Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [13] – [18].

The applicability of s.6(3) of the SRC Act

  1. As phrased in the written submissions, this issue is not framed as a question of law, but as an assertion.  Mr Kemp is, and has always been, legally represented in these proceedings.  This is not a case where the appellant is a lay person who is representing himself or herself.  I am reluctant, therefore to formulate a question of law for consideration that attempts to encapsulate this issues as agitated by Mr Kemp.  However, doing the best that I can and having regard to the submissions made for Mr Kemp, the question of law appears to be:

    Can the provisions of s.6(3) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) be engaged where, for the purposes of an application for compensation under the Act, the applicant has suffered an injury as defined by s.5A of the Act?

  2. The dangers in attempting to formulate a question of law for Mr Kemp’s purposes are manifest.  For example, the question may not properly encapsulate the point he wishes to make.  And problems are also visited upon the respondent.  Having formulated a question of law, the respondent has not had the opportunity to make submissions on that question as framed.

  3. The Tribunal found that Mr Kemp suffered an injury in the relevant accident. It was, on any view, an injury that arose out of or in course of his employment for the purposes of s.5A of the Act and for which Mr Kemp could pursue a claim pursuant to s.14 of the Act.

  4. Section 6(1) of the Act also deals with the circumstances in which an injury suffered by an employee might be taken to have arisen out of or in the course of the employee’s employment. It operates to extend the circumstances in which it might be concluded that an injury arose “out of or in the course of” the employee’s employment. Section 6(3) of the Act provides that:

    “(3)  Subsection (1) does not apply where an employee sustains an injury:

    (a)  while at a place referred to in that subsection; or

    (b)  during an ordinary recess in his or her employment;

    if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”

  5. The Tribunal decided the application before it, in part at least, on the basis that s.6(1) and s.6(3) were relevant to determining Mr Kemp’s entitlement. It did so because that is what both parties, and in particular Mr Kemp (by his Counsel), submitted the Tribunal ought to do. The Tribunal found that the disentitling provisions of s.6(3) were indeed engaged on the facts as found by the Tribunal and therefore Mr Kemp’s injury did not arise out of, or in the course of his employment.

  6. Mr Kemp argues that the application of s.6(3) by the Tribunal was in error because:

    a)s.6(3) of the Act can only apply where s.6(1) of the Act applies;

    b)s.6(1) did not need to be relied upon for the Tribunal to find that Mr Kemp suffered an injury compensable under the Act;

    c)the Tribunal misconstrued the nature and function of s.6(1) of the Act in that it adopted the approach of treating s.6(1) as a section of definition when, on a proper construction of that section it ought to have treated it as a section which served only to extend the circumstances in which it might be said that an injury occurred arising out of or in the course of his employment beyond those set out in s.5A of the Act.

  7. As Birdseye and Rana (amongst others) demonstrate, an appellant must connect the answer to the question of law that is the subject of the appeal to the outcome of the appeal.  That is the function of the grounds of the appeal.  Even if the Court finds an error of law on the part of the Tribunal in relation to the question of law the subject of the appeal, it should not set the Tribunal’s decision aside if it is satisfied the error did not affect the ultimate decision in a material way: e.g. Walterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555.

  8. In this case I reach no conclusion as to how this particular question should be answered because I do not think that it is necessary to do so.  It is not necessary to do so because whatever the answer, the outcome of the appeal will not be affected.

  9. Nonetheless, even assuming that the answer to the first question is “no” (the favourable answer as far as Mr Kemp is concerned), the appeal must fail.  To succeed on this ground, Mr Kemp must argue that had no regard been paid by the Tribunal to those sections, the result of the application before it would have been different.

  10. In my view, it cannot be said that no regard had been paid by the Tribunal to ss.6(1) and 6(3) of the Act the result of the application before it would have necessarily been different. The Tribunal considered the disposition of the application before it without reference to those sections. In paragraph 94 of its reasons, the Tribunal said:

    “Whether compensation is payable: the role of s 14 of the Act

    94. In the event that s 6 of the Act should not be applied in the way that I have done so above, I have also considered Mr Kemp’s claim without regard to that provision. In that situation, the evidence points to Mr Kemp’s back strain as an injury suffered by him and one arising out of, or in the course of, his employment as truck driver with K & S in accordance with s 5A(1) of the Act for which liability to pay compensation would arise under s 14(1) of the Act. In a situation where s 14(1) of the Act is satisfied, the disentitling terms of s 14(3) of the Act must be considered. In accordance with that provision, compensation is not payable in respect of an injury that is “caused by the serious and wilful misconduct of the employee but which is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment”.  There is no suggestion that Mr Kemp’s back strain was self-inflicted and the certification by Dr O’Regan on 30 May 2008 confirms that the condition did not result in serious or permanent impairment.”

    (footnotes omitted)

  1. Thus, the ultimate outcome of Mr Kemp’s appeal in the Tribunal was not dependent upon the Tribunal’s findings about s.6(3) of the Act. The outcome was also independently informed by the Tribunal’s findings about s.14(3) which were set out in paragraphs [95] – [100] of its reasons for decision.

  2. Unless it can be demonstrated that there is another question of law, the answer to which means that the result arrived at by the Tribunal should have been different, the appeal must be dismissed.

The “no evidence” grounds

  1. The remaining three grounds identified in the written submissions can all be characterised as “no evidence” grounds.  Such an approach seems to be recognised by the way in which the question of law for determination was framed orally by Counsel for Mr Kemp.

  2. In support of the submission that the grounds raise a question of law Mr Kemp placed reliance upon a passage from the judgment of the High Court of Australia in the Australian  Broadcasting Tribunal v  Bond (1990) 170 CLR 321 (the Bond Media Case):

    87. The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 WN(N.S.W.) 8, at p 9; The  Australian  Gas Light Co. v. The Valuer-General (1940) 40 SR(NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian  Gas Light, at pp 137-138; Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [1975] HCA 17; [1975] HCA 17; (1975) 132 CLR 473, at pp 481, 483.

    88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:

    "Even if the reasoning whereby the Court reached its    conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact    would not disclose an error of law."

    89. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

  3. The Bond Media Case concerned the operation of the Administrative Decisions (Judicial Review) Act 1977 and the above passage appears in connection with Mason CJ’s discussion of the scope of ss.5(1)(f) and 5(1)(h) of that Act. The principles discussed by the Chief Justice, however, were principles of general application derived from authorities that considered the position at common law. I accept that a question of law for the purposes of s.44(1) of the AAT Act might arise where the appellant seeks to argue that there was no evidence before the Tribunal to support a factual finding made by it.

  4. Adopting the matters raised for consideration by Mr Kemp’s written outline (set out above) and restating them as questions of law, the questions appear to be:

    a)In the event that the provisions of s.6(3) of the SRC Act do apply, was there evidence before the Tribunal to permit of a finding that Mr Kemp:

    i)Voluntarily; and

    ii)unreasonably

    submitted to any abnormal risk of injury by failing to wear a seatbelt on 20 May 2008?

    b)Was there any evidence before the Tribunal to permit of a finding that it was serious and wilful misconduct by Mr Kemp which caused his injury?

    c)Was there evidence before the Tribunal to permit of a finding that Mr Kemp suffering a soft tissue injury, described as a back strain, as a result of the accident on 20 May, 2008 (described by Mr Kemp in his submissions as the Tribunal making a finding other than the finding that on 20 May 2008 Mr Kemp suffered an L3/4 and L4/5 disc protrusion)?

  5. As to the first matter, the Tribunal found the following facts:

    a)There was a real risk of a vehicle rollover while negotiating the relevant corner because of its acute angle. (paragraph [92] of the reasons);

    b)At the time of the accident, the truck that Mr Kemp was driving was travelling at more than a “crawling speed” and was in 7th low gear (paragraph [89] of the reasons);

    c)The speed at which the truck was travelling, and the nature of the turn that it had to negotiate were responsible for the vehicle roll-over (paragraph [89] of the reasons);

    d)The risk of injury to an occupant in a vehicle is increased where the occupant is not restrained in the vehicle by a seat belt (paragraph [92] of the reasons);

    e)Mr Kemp knew there was a risk of injury from driving his truck into the corner at excessive speed and without wearing a seatbelt.  This finding was made inferentially by the Tribunal’s rejection of Mr Kemp’s evidence that such a suggestion was “ludicrous” (paragraph [92] of the reasons);

  6. The Tribunal concluded at paragraph [93] of the reasons that Mr Kemp’s injury was caused because he voluntarily and unreasonably submitted to the abnormal risk of injury.

  7. Each of the Tribunal’s findings was supported by evidence.  As to the finding that there was a real risk of a vehicle rollover while negotiating the relevant corner, the Tribunal relied upon the evidence of Mr Christoper Skelding an Inspector of Mines with the Queensland Department of Mines and Energy.  His evidence was that the bend in the road (given its acute angle) was a hazard that would seem to invite a rollover.  His evidence was that entering the bend at anything but “crawling speed” would risk a rollover.

  8. There is evidence from which the Tribunal could find that the truck that Mr Kemp was driving was travelling at more than a crawling speed.  The gear in which the truck was negotiating the corner was relevant.  There was evidence from Mr Kemp that the vehicle may have been in 6th or 7th gear low range.  There was evidence from Mr Greg Black, the Operations Manager for the respondent, that when he inspected the truck cabin at the accident site, the gear position was 7th low.  Further, there was evidence from Mr Graeme Wooller the Chief Operating Officer for the respondent that in 7th low gear, the truck was capable of operating in a speed range from stalling speed to 52 km/hr.  Mr Wooller gave evidence that had the truck been travelling at a speed between 7 to 14 km/hr it would not have rolled over but that 52 km/hr was too fast to negotiate the relevant turn. 

  9. Further, there is evidence referred to by the Tribunal from which it drew the inference that the truck was travelling at a greater than “crawling speed.”  That evidence, set out at paragraph 89 of the Tribunal’s reasons was the spread of Mr Kemp’s load (magnesite) behind the trailer after the rollover and the fact that the circumstances of the accident were sufficient to project Mr Kemp forward and through the windscreen of his vehicle. 

  10. It was not seriously contended that the risk of injury to an occupant in a vehicle was increased where the occupant was not restrained in the vehicle by a seatbelt.  In any event, that was a finding open to the Tribunal given the evidence before it about the instructions given by Mr Kemp’s employer to him that he must always wear a seatbelt when travelling in his vehicle.  Mr Kemp’s evidence as to whether he was wearing a seatbelt or not prior to the accident equivocated.  There were contemporaneous reports by Mr Kemp to the ambulance officers who attended upon him and others who investigated the accident that he was not wearing a seatbelt at the time.  His evidence to the Tribunal, however, was that he was wearing a seatbelt although took it off moments before the rollover so that he could adopt his preferred position of under the dash board in the vehicle.  The Tribunal rejected Mr Kemp’s evidence and found that Mr Kemp was not wearing a seat belt at all on the day in question.

  11. Having regard to the above evidence, it was open to the Tribunal to infer that Mr Kemp knew that there was a risk of injury from not wearing his seatbelt whilst driving his truck in the event that his truck was involved in an accident. 

  12. The Tribunal’s conclusion that Mr Kemp’s injury was caused because he voluntarily and unreasonably submitted to an abnormal risk of injury was open to it on the evidence.  On Mr Kemp’s own case he removed his seatbelt prior to the accident.  The Tribunal found that he was never wearing one.  In light of the evidence about the instructions he had been given from his employer a finding that his actions voluntarily and unreasonably submitted him to a risk of injury was open on the evidence. 

  13. The Tribunal’s finding that the risk of injury was “abnormal” was open on the evidence.  As the respondent points out, when a statute uses words according to their ordinary meaning, and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact rather than a question of law: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [36]; Commissioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150 at 155, 157 and 160; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Sharp Corp (Aust) Pty Ltd v Collector of Customs (1995) 59 FCR 6. In any event, therefore, even if the Tribunal’s finding that the risk of injury to which Mr Kemp voluntarily and unreasonably submitted was “abnormal” was erroneous, the finding is one of fact and unassailable on this appeal.

  14. As to whether there was any evidence before the Tribunal to permit a finding it was serious and wilful misconduct by Mr Kemp which caused his injury, the Tribunal set out its conclusions about those findings in paragraphs 97 – 99 of its reasons.  The Tribunal found that Mr Kemp engaged in misconduct – not wearing his seatbelt, and that that conduct was wilful given the very clear instructions from his employer about the requirement to wear a seatbelt while driving his truck.  There was evidence before the Tribunal capable of supporting those findings.  The “no evidence” ground in respect of these findings by the Tribunal fails.

  15. As to the finding by the Tribunal that Mr Kemp suffered a soft tissue injury, described as a back strain as a result of the accident on 20 May 2008, and not some more serious injury, there was indeed significant evidence before the Tribunal which would permit the Tribunal to reach that conclusion.  The Tribunal set out its reasons and conclusions about Mr Kemp’s injury between paragraphs 71 and 76 of its reasons for judgment.  In doing so, the Tribunal accepted the evidence of Dr James O’Regan, general practitioner and his diagnosis of “back strain” made soon after the relevant accident.  Dr O’Regan certified Mr Kemp as fit to return to normal duties from 30 May, 2008 and as the Tribunal found, Mr Kemp did return to work immediately thereafter.  He continued to work for various employers for some time.  The Tribunal recorded Mr Kemp’s evidence for ceasing work for those various employers, which had nothing to do with any injury to Mr Kemp’s back.  The Tribunal rejected the evidence of Dr Scott Campbell, neurosurgeon, on a number of bases.  Firstly, the Tribunal was concerned that Dr Campbell relied upon a history given to him by Mr Kemp which was inaccurate in significant respects.  Mr Kemp’s actual work history following the accident was not consistent with Dr Campbell’s understanding of Mr Kemp’s post accident work history.  Whilst the Tribunal was satisfied that Mr Kemp indeed suffered from an L3/4 and L4/5 disc protrusion (the more significant injury contended for by Mr Kemp), the Tribunal was not satisfied that it was not related to “his involvement in the truck rollover on 20 May 2008.”  There was evidence to support the Tribunal’s finding that Mr Kemp had suffered a back strain but was fit to return to work soon after the accident.

Conclusion

  1. In my view, the notice of appeal in this matter does not raise any questions of law as it is required to do for a properly constituted appeal under s.44(1) of the Administrative Appeals Tribunal Act 1975. In my view, the jurisdiction of the Court is not engaged and the appeal ought to be dismissed on that ground alone.

  2. However, in the event that view is wrong, I am not satisfied that Mr Kemp has demonstrated that there is any question of law, the answer to which necessarily means that the result before the Tribunal must have been other than what it was.

  3. The appeal is dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date:  13 January 2012

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McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39