Kuchappan v Comcare
[2001] FMCA 67
•28 August 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
KUCHAPPAN v COMCARE [2001] FMCA 67
ADMINISTRATIVE LAW – Appeal from Administrative Tribunal – claimed misunderstanding of facts – claimed failure to make a specific finding – no error of law – appeal dismissed
| Applicant: | BRIAN VIJAY KUCHAPPAN |
| Respondent: | COMCARE |
| File No: | BZ153 of 2000 |
| Delivered on: | 28 August 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 19 April 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M E Pope |
| Solicitors for the Applicant: | Wilson Ryan and Grose |
| Counsel for the Respondent: | M E Ford |
| Solicitors for the Respondent: | Dibbs Barker Gosling |
ORDERS
The Appeal is dismissed.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
BZ 153 of 2001
BRIAN VIJAY KUCHAPPAN
Applicant
And
COMCARE
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by BRIAN VIJAY KUCHAPPAN (“the Applicant”) against a decision given 30 May 2000 of the Administrative Appeals Tribunal, constituted by Senior Member K L Beddoe (“the decision”). The Respondent to the Appeal is COMCARE (“the Respondent”).
The Appeal was filed on 26 June 2000 and was remitted to this Court by order of Spender J. The power to transfer to this Court is contained in s44AA(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
Both parties filed written submissions and presented oral argument which I heard on 19 April 2001. I reserved my decision which I deliver today.
Issue
Mr Pope for the Applicant conceded that the questions of law identified in the Notice of Appeal were not well articulated. In his oral and written submissions he indicated the two questions of law he relied upon were:
a)the learned Senior Member findings were as a result of a misunderstanding of the facts, such as to amount to an error of law in accordance with the principles in House v The King (1936) 55CLR499; and
b)the learned Senior Member failed to make any finding of fact in relation to the medical evidence.
Background
The procedural history of the matter is conveniently, and accurately set out in paragraphs 1 – 4 of the Decision and no useful purpose is served by restarting that history.
The learned Senior Member heard evidence on 13 and 14 October 1999, from which he made various findings of fact (at paragraphs 10 – 18) about relevant incidents occurring during the Applicants service in the Australian Army from his enlistment in March 1977 to his discharge in June 1995. Some of those findings of fact are attacked by the Applicant.
Principles to be applied
It is a well accepted principle that where a specialist body like the AAT has the statutory task of assessing facts, then a Court ought not embark on its own analysis of the evidence (see Brown v. Repatriation Commission (1985) 16 ALR 289 and the criticism of Lockhart J in Politis v. FCT (1988) 16ALR 707 about a growing tendency to “construe the Tribunal’s reasons for its decision minutely and finely and with an eye keenly attuned to the perception of error”).
S44(1) of the AAT Act provides an appeal lies only on a question of law. Brennan J in Waterford v. Commonwealth (1987) 71 ALR 673 at 689 further, and simply stated the ambit as being that:
“the error of law which an applicant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law in making a wrong finding of fact”.
Misunderstanding of facts
The Applicant says the learned Senior Member misunderstood the evidence of what Mr Pope described as the “mechanics of the fall” from a tree whilst engaged in securing camouflage nets during Exercise Mudlark, near Nowra in June 1979.
The Applicant asserts that:
a)the Senior Members finding (at para 12) that:
“the applicant’s oral evidence did not satisfy me that he did in fact land on his neck. I accept his written statement to the effect that he landed on his back and shoulder blades and that his back hit the ground before his head did”.
was not open to him on the evidence.
b)such a finding was contrary to written documents that were before the Tribunal namely:
i)his “Claim for compensation” and “Report of an Injury”, both dated 16 September 1988, where he claimed he “fell on to my back and neck”.
ii)His statement given in 1999 that – “I recall falling backwards and landing on my back between my neck and my shoulder blades”.
iii)The evidence of Dr Rossato, (in particular his statement under cross examination about the neck degeneration and existence of an osteophyte in the neck); that it:
“would be rare in my experience to find this naturally occurring phenomenon in a person of 36 years without any trauma”.
In reply the Respondent says:
a)the oral testimony of the Applicant to the tribunal was that where Dr Rossato operated was the actual spot of impact, using the following words:
“Q. How does that relate to where you fell – how you fell?
A.Well, as a matter of fact, its actually right on the spot but there were three discs, C5, C6, C7 and that’s all in that area.”
b)The oral testimony was an attempt by the Applicant to identify an actual point of impact which was contrary to the written statement in 1999. This finding was open to the Senior Member, corroborated by the evidence of Dr Pincus and explained by the finding of the Senior Member that the Applicant’s explanation “to me of how he fell and was injured was unbelievable”.
I agree with the Respondent on this point. The Senior Member was entitled to prefer what was written in the 1999 Statement that the Applicant landed on his back in the general region between the neck and shoulder blades, to the oral testimony that he landed on his neck exactly where the fusion occurred.
If that was an error, it would have been, in my view, an immaterial error because of the relative proximity of the two alleged points of impact (“fell on back” or “fell on back between the shoulder blade and the neck”) coupled with the ultimate finding that the incident could not have been the cause of the pain and disability now complained of by the Applicant.
Failure to make findings of facts on the medical evidence
The Applicant submitted that the Senior Member failed to make any findings on the medical evidence and was required to do more than just recite what the parties relied upon.
The Respondent says, in reply that although the Senior Member did not make a specific finding in respect of the osteophyte in the neck, the evidence of both Drs Rossatto and Laister was that the osteophyte could have been caused by either trauma or by natural progression (Dr Rossatto says that would be rare) and did make a finding that he could not be satisfied that there is a causative link between the fall and the claimed condition. This was consistent with a view open on the medical evidence.
Foster J in FCT v Cainero (1988) 15 ALD 368 at 370 said:
“... that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.”
The Senior Member says at paragraph 47 of his reasons that:
“While I accept that the applicant fell out of a tree, I am not satisfied that he was relevantly injured because of that fall … I am not satisfied that the applicant’s explanation about the incident is truthful ... Being satisfied that the applicant is not a witness of truth and there being no corroboration of his evidence that satisfied me that it is more likely than not that he was injured in the fall I cannot be satisfied that there is a causative link between the fall and the claimed condition.”
It is clear from his reasons that he preferred a combination of the evidence of Drs Laister and Pincus to that of Dr Rossato and coupled with his view of the conflicts in the Applicant’s evidence (and finding or credit), it was not necessary, in my view, for the learned Senior Member to make a specific finding on the medical evidence. Furthermore, it was not an issue of importance likely to effect the outcome of the case, after the crucial finding of causation had been made. (See Soulemezis v Dudley (Holdings) Pty Ltd (1987)
10 NSWLR 247 @ 276).
Conclusion
In the circumstances I can find no error of law pursuant to s 44 of the Administrative Appeals Tribunals Act 1975 has been made by the Tribunal. Accordingly it is appropriate that I dismiss the application.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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