Ladic, Stefanija v Capital Territory Health Commission

[1982] FCA 185

Re: STEFANIJA LADIC
And: THE CAPITAL TERRITORY HEALTH COMMISSION
No. ACT G6 of 1982
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.

CATCHWORDS

Compensation - Appeal from Administrative Appeals Tribunal - Whether there was a question of law - Onus of Proof in Tribunal proceedings considered.

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s.27

HEARING

CANBERRA

#DATE 27:8:1982

ORDER

The application be dismissed with costs.

JUDGE1

In this case the applicant challenges a decision of the Administrative Appeals Tribunal (Mr. Ballard, a Senior Member) on a review by it of a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971. The determination of the Delegate of the Commissioner for Employees' Compensation was made on 19 January 1981. It was adverse to the present applicant, being in the following terms:

"the said Stefanija Ladic was not totally incapacitated for work during the periods from 10 December 1976 until 12 June 1977 and from 11 June 1978 until 7 February 1979, all dates inclusive and ceased to be totally incapacitated for work, as a result of the personal injury sustained by her in October 1976, not later than 14 March 1979, and therefore she is not entitled to any weekly payments of compensation under section 45 of the said Act, from June 1978 until 7 February 1979, all dates inclusive, and on and subsequent to 14 March 1979."

It is common ground that the applicant, Mrs. Ladic, sustained an injury at work in September or October 1976 (the exact date is not clear). It was an injury to the lower back, and was probably a sacro-iliac strain. She nevertheless continued to work, and was not paid compensation, nor did she seek it. In December 1976 she went back to Yugoslavia, where she had been born, and she did not return to Australia until June 1977. She later made a claim for compensation for the period of her absence, on the basis of total incapacity, but this was rejected and her counsel does not seek to support the claim. On her return, she re-commenced work with her employer, the present respondent. At one stage of her evidence before the Tribunal she said that prior to her trip to Yugoslavia she was "at home for one week" but in respect of this period, she was, according to her counsel, mistaken. In fact she was absent from work for one week after her return from Yugoslavia. For two short periods in January 1978 she was treated by the Delegate as totally incapacitated for work as a result of the injury, and was paid compensation accordingly. On 11 June 1978 she returned to Yugoslavia. She saw a doctor there who issued a certificate dated 19 December 1978 stating a diagnosis in the translation of which the word lumbago appears. There was evidence from a medical practitioner as to what was meant, but the position, at best, seems unclear and the Tribunal treated the certificate as not related to her compensable injury. She returned in January 1979, and subsequently made a claim for compensation for the period of her absence. On 7 February 1979 she was admitted to hospital by her local doctor for a back complaint and remained there in traction until 13 March 1979. She was paid compensation for this period.

On 8 June 1979, the Delegate made a determination in the following terms:

"In pursuance of the provisions of the Compensation (Commonwealth Government Employee's) Act 1971 (sic), as amended, I hereby determine:-

(a) the said Stefanija Ladic sustained personal injury arising out of or in the course of her employment in October 1976, namely, sacro-iliac strain;

(b) in accordance with the provisions of sub-section 27(1) of the said Act, the Capital Territory Health Commission is liable to pay compensation in respect of the said personal injury."

It is to be noted that this determination deals with liability under the Act, in the abstract, and does not state any period of incapacity or rate of compensation. On 13 June 1979 a determination was made as follows in respect of the periods in January 1978:

"(1) In pursuance of the provisions of Section 45(2A) of the said Act, she is thereby entitled to the payment of Compensation of $159.38 per week from 3 January 1978 to 10 January 1978 both dates inclusive, and from 18 January 1978 to 29 January 1978 both dates inclusive."

On 17 December 1980 a further determination was made, this time for the period Mrs. Ladic was in hospital in traction:

"in accordance with the provisions of sub-section 45(2A) of the said Act, the said Stepanija Ladic (sic) is entitled to the payment of compensation at a rate equivalent to that to which she would be entitled if she were granted sick leave on full pay during the period from 7 February 1979 until 13 March 1979, both dates inclusive."

Whether specific claims led to these determinations does not appear (see s.54 of the Act); only one claim is in evidence. The long delays are unexplained, but it is reasonably plain that the two last-mentioned determinations related to particular past periods, and did not in either case have an ongoing effect. Mrs. Ladic has apparently not worked since her return to Australia in January 1979 (and did not do so during her absence). Her evidence was to the effect that she had consistent back pain, preventing her from working.

The determination of 19 January 1981, already set out, was declaratory in form and expressed in negative terms. I am asked to assume in this case that it was regularly made, on the basis of any claim or claims which were necessary. The formal decision of the Tribunal, made on 14 January 1982, was "to affirm the determination in this matter of 19 January 1981" (see s.43(1) of the Administrative Appeals Tribunal Act 1975; s.151 of the Commonwealth Functions (Statutes Review) Act 1981).

It is a material fact, so found by the Tribunal, that in 1971 Mrs. Ladic complained to a doctor of pain in the right sacral region and down the right leg, and was provisionally diagnosed as suffering from sciatica. According to the records of her doctor she thereafter on a number of occasions complained of various back pains, and pains down the leg.

The present application can only be brought to correct an error of law. Findings of fact cannot properly be the subject of challenges in this Court. In this regard it should be noted at the outset that the Tribunal, which heard and saw Mrs. Ladic give evidence, made adverse findings as to her credibility. Some of the medical evidence was also not accepted. Those findings, correct or not, find adequate support in the materials before it.

The first, and I think the major attack on the findings of the Tribunal, was that it had proceeded wrongly so far as concerns the onus of proof. The first submission was that Mr. Ballard had been wrong in asking that Mrs. Ladic give evidence before it was seen that the respondent had made out a case that no compensation was payable. This submission had particular relation to the period commencing 14 March 1979, compensation having been awarded for a period to 13 March. If it be assumed that there was an "onus", and that the respondent carried that onus, it would be wrong to say that as a matter of law the Tribunal had to find that there was material which, if accepted, would discharge it, before taking the evidence of Mrs. Ladic. Subject to relevant legislation, it is for the Tribunal to decide upon its own procedure. Although in many ways resembling a court of law, and although it often finds it helpful to follow, in general, the course of proceedings in a court of law, it must always be remembered that its role is fundamentally administrative. Its task is to inquire. By way of contrast, the task of a court of law is, in general, to decide which of two opposed cases is to be preferred. It was well within the competence of the Tribunal in the present case to decide at what stage Mrs. Ladic should have been required to give evidence.

The term "onus of proof" (or "burden of proof") has much of its application as an incident of the adversary system of litigation found in common law countries. This is not the occasion to examine its meaning and application in proceedings before the Tribunal. It was undoubtedly necessary for the Tribunal in the present case to be satisfied, on the facts, of certain matters. This was a legal burden, or requirement, and could, as a matter of common sense, be said to have rested with the party seeking the result. If there had been continuing periodical payments for incapacity, one matter of which the Tribunal would have had to be satisfied was that there had been a change, justifying cessation or reduction of payments (see The Commonwealth v Muratore (1978) 141 C.L.R. 296). In fact, there had been no determination of a continuing liability. Also, the Tribunal, while doubting the correctness of the use of the term "onus", applied it favourably to Mrs. Ladic for the period commencing 14 March 1979, and in relation to the period December 1976 to June 1977 expressly stated that "if the 'onus' of proof did lie on the respondent in respect of this claim I would find that the respondent had discharged that onus." A similar statement was made concerning the period June 1978 to February 1979. It does not seem to me that any matter concerning onus operated adversely to Mrs. Ladic so far as concerns the Tribunal's findings of fact.

The determination under review negatived liability for total incapacity. It was this determination which was affirmed. The Tribunal, however, found that there was no incapacity at all resulting from the injury. In strictness, it went beyond reviewing the determination. The fact that there was no incapacity resulting from the injury of course meant that there was also no total incapacity from that cause, and it does not seem to me that the way the Tribunal approached the matter can be regarded as involving an error of law. At the same time, the determination and its affirmation were related to total incapacity and do not preclude a claim, if otherwise available, on the ground of partial incapacity.

The conclusion of the Tribunal was that Mrs. Ladic had a pre-injury degenerative back condition, which was aggravated temporarily by the injury. It is submitted that there was no evidence upon which to base a finding as to the pre-injury degenerative condition. This submission cannot be sustained; there was adequate material in the form of viva voce evidence, and doctor's records, to show that she was complaining of symptoms in the period 1971-1976 which are indistinguishable from those she claims to have suffered as a result of the injury.

Another submission is to the effect that the Tribunal failed to take properly into account the determinations made in favour of Mrs. Ladic, and the additional fact, which I have not so far mentioned, that she was paid compensation by the respondent for about seven months in 1981, unrelated to any specific claim, or any determination. There is only a passing incomplete reference to this last-mentioned payment in the evidence, and the Tribunal's knowledge concerning it comes almost wholly from what was said from the bar table. Counsel for the respondent said it was a payment made in error, and the matter was not taken any further. Respecting the determinations, the attitude of the Tribunal seems to have been that they were made, but for what it called "closed" periods, and that they did not have particular significance for its decision. Mr. Ballard was naturally aware of what they were for, but did not seem to draw any inference from the fact that they had been made. In a finding he said:

"(i) that, apart from the periods for which liability for incapacity has been admitted by determinations of 13 June 1978 and 17 December 1980, no incapacity for work has resulted from the applicant's injury in September 1976;"

It would be consistent with his overall view of the facts, if not a necessary result of it, that one or both determinations should not have been made in favour of Mrs. Ladic. I do not think this circumstance invalidated his findings of fact or that as a matter of law he was required to give the determinations any more significance than he did. It was also submitted that he should have given weight to the first determination (made on 8 June 1979), as if subsequent incapacity due to a sacro-iliac condition was necessarily compensable. If subsequent incapacity was due to the sacro-iliac condition suffered in September or October 1976, then of course compensation would be payable for that incapacity. If the strain had aggravated a pre-existing condition, compensation would similarly be payable for incapacity resulting from the aggravation. The determination was however no more than an acknowledgment of the occurrence of an event, that sacro-iliac strain resulted therefrom, and that liability existed for incapacitating consequences (see s.27(1) of the Act). The Tribunal dissociated the incapacity for which compensation was claimed from the injury, and this was a matter within its province.

In my view, the application fails and should be dismissed, with costs.