Learmont v Commissioner of Police

[2016] NSWCA 137

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Learmont v Commissioner of Police [2016] NSWCA 137
Hearing dates:	23 March 2016
Decision date:	22 June 2016
Before:	Beazley P at [1]; Ward JA at [2]; Sackville AJA at [101]
Decision:	Appeal and summons dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – application for gratuity under Police Regulation (Superannuation) Act 1906 (NSW), s 12D – whether trial judge addressed the wrong question in seeking to identify the pathological consequences of injury – whether identification of “injury to which the claim relates” a question of fact or question of law – whether impermissible application by judge of own medical knowledge amounting to denial of procedural fairness
Legislation Cited:	Compensation Court Repeal Act 2002 (NSW) District Court Act 1973 (NSW), ss 142G, 142J, 142N Motor Accidents Compensation Act 1999 (NSW) Police Regulation (Superannuation) Act 1906 (NSW), ss 10B, 12D, 21 Superannuation Administration Act 1996 (NSW) Supreme Court Act 1970 (NSW), s 48 Uniform Civil Procedure Rules 2005 (NSW), Sch 11 Workers Compensation Act 1987 (NSW), ss 4(a), 9A, 66, 67
Cases Cited:	Arian v Nguyen [2001] NSWCA 5 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229 Chief Executive Officer, Department for Child Protection v Grinrod (No 2) [2008] WASCA 28; (2008) 36 WAR 39 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Commissioner of Police v Kennedy [2007] NSWCA 328 Department of Public Works v Morrow (1986) 5 NSWLR 166 Goodwin v Commissioner of Police [2010] NSWCA 239 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZDMS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 SAS Trustee Corporation v Pearce [2009] NSWCA 302 Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419 Swift v SAS Trustee Corporation [2010] NSWCA 182 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Texts Cited:	M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, 2013, Thomson Reuters)
Category:	Principal judgment
Parties:	Andrew Learmont (Appellant) Commissioner of Police (Respondent) District Court of New South Wales (Second Respondent in 2016/00019224) (Submitting appearance)
Representation:	Counsel: T Ower (Appellant) Ms J Lonergan SC with MJ Gollan   Solicitors: Harris Wheeler Lawyers (Appellant) McCabes (Respondent)
File Number(s):	2015/00133209; 2016/00019224
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Residual Jurisdiction Date of Decision: 16 April 2015 Before: Neilson DCJ File Number(s): RJ00332 of 2013

HEADNOTE

[This Headnote is not to be read as part of the judgment]

This judgment relates to an appeal from a decision of a judge in the District Court confirming a decision of the Commissioner of Police dismissing Mr Learmont’s claim for a gratuity for injuries he suffered during an incident on 3 March 1990 in the course of his duty as a police officer.

On 27 October 2010, Mr Learmont applied to the SAS Trustee Corporation (STC), the corporation administering the relevant fund, for a gratuity under s 12D of the Police Regulation (Superannuation) Act 1906 (NSW) (the Act), claiming permanent impairment to his back and both legs at or above the knee. On 27 February 2013, the Commissioner determined that Mr Learmont’s back and leg injuries were not caused by him being “hurt on duty” within the meaning of the Act.

Mr Learmont then commenced proceedings in the District Court under s 21 of the Act, seeking to set aside the decision of the Commissioner. A hearing under s 21 of the Act proceeds as a hearing de novo. The injury pleaded in the statement of claim was simply injury to the “lower back”. Much of the evidence admitted in the District Court went to the nature and consequences of the back injury sustained in the incident.

The primary judge confirmed the decision of the Commissioner. His Honour identified the “injury to which the claim relates”, for the purposes of s 12D(4), as a lower back injury capable of leading to the loss of efficient use of each leg and determined that Mr Learmont had not sustained such an injury on 3 March 1990.

Mr Learmont challenged the primary judge’s decision by way of both an appeal and a summons seeking relief in this Court’s supervisory jurisdiction. Mr Learmont argued that the role of the Commissioner (and therefore of the primary judge) under s 12D was confined to determining whether Mr Learmont had sustained a back injury of some kind on 3 March 1990 and did not extend to deciding what part of his back had been injured and the pathological consequences of that injury; an issue which he argued was in the province of the STC.

Held dismissing the appeal and summons with costs, by Ward JA (Beazley P and Sackville AJA agreeing at [1] and [101], respectively):

(1) (at [60]; [68]) that the primary judge did not err in addressing the question whether Mr Learmont had sustained a lower (not upper) back injury while on duty, in circumstances where no upper back injury was pleaded and therefore could not have been the “injury to which the claim relates” for the purposes of s 12D(4) of the Act. If his Honour was incorrect in narrowing the question to whether there was injury to the lower back capable of leading to permanent impairment of the use of the legs, it would be an error in the fact-finding process and not an error of law.

(2) (at [77]) that while there was a basis for complaint that the primary judge impermissibly referred to matters within his own medical knowledge and not on the evidence, no procedural unfairness was thereby occasioned.

(3) (at [81]) that the primary judge did not fail to address Mr Learmont’s submission regarding the division of powers between the STC and the Commissioner under s 12D(4). His Honour explained why he considered it necessary to consider the nature of the injury to which the claim related, i.e., that, since “back” injury could refer to different parts of the back, it was necessary to determine what was claimed.

(4) (at [91]; [99]) that the primary judge’s finding that Mr Learmont sustained a back injury to the upper thoracic spine during the incident was not illogical and unreasonable when the evidence is considered as a whole.

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Ward JA. I agree with her Honour's reasons and proposed orders.

2. WARD JA: Mr Andrew Learmont is a former senior police constable. He was assaulted by an offender on 3 March 1990 when he responded to a domestic violence call. There is no dispute that the incident occurred when he was acting in the course of his duty as a police officer.

3. On 27 October 2010, Mr Learmont applied to the SAS Trustee Corporation (STC) for a gratuity pursuant to s 12D of the Police Regulation (Superannuation) Act 1906 (NSW) (the Act), claiming to have suffered permanent impairment to his back, his left leg at or above the knee and his right leg at or above the knee. STC is the corporation, constituted under the Superannuation Administration Act 1996 (NSW), that administers the Police Superannuation Fund established under the Act to which, at the relevant time, Mr Learmont was a contributor.

4. In Mr Learmont’s application to STC, the information provided as to the circumstances of the cause of each of the three injuries was simply “hurt whilst on duty”. Attached in support of the claim was a medical report dated 11 October 2010 provided by an orthopaedic surgeon, Dr Patrick, and a statement signed by Mr Learmont.

5. Pursuant to s 12D(4)(a) of the Act, the Commissioner of Police was required to decide whether or not the injury to which the claim related was caused by Mr Learmont having been hurt on duty. By his delegate, the Commissioner determined on about 27 February 2013 that Mr Learmont’s “back and left and right leg injury” was not so caused.

6. By statement of claim filed on 26 July 2013, Mr Learmont then brought proceedings in the District Court in its special statutory compensation list as a person aggrieved by the decision pursuant to s 21 of the Act. He sought an order for the Commissioner’s decision to be set aside and an order that his “back and left and right leg injury” was caused by him being hurt on duty.

7. The primary judge confirmed the decision of the Commissioner, delivering oral reasons on 15 and 16 April 2015 and dismissing Mr Learmont’s claim.

8. Mr Learmont then commenced two separate proceedings in this Court. First, by notice of appeal filed 14 July 2015, Mr Learmont brought an appeal under s 142N of the District Court Act 1973 (NSW) challenging the decision of the primary judge on the following grounds:

1. The Trial Judge misapplied s.12D(4)(a) of the Police Regulation (Superannuation) Act 1906 by addressing the wrong question in seeking to identify the pathological consequences of injury rather than asking whether the incident of injury was hurt on duty.

2.   The Trial Judge impermissably [sic] applied medical knowledge which was not founded in the evidence before him.

3. The Trial Judge failed to address the appellant’s submission regarding the limited enquiry required by s.12D(4)(a).

4.   The Trial Judge unreasonably misconstrued the evidence concerning the appellant’s injury on 3 March 1990 and ignored relevant evidence on point.

(Mr Learmont accepts that, his appeal having been brought pursuant to s 142N of the District Court Act, he must demonstrate an error in point of law to be successful and that the fourth of his grounds of appeal does not raise an error of law; hence the second set of proceedings. Ground 4 was therefore not pressed as a ground of appeal.)

9. Second, by summons filed on 24 December 2015, Mr Learmont sought relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) invoking this Court’s supervisory jurisdiction on a ground mirroring ground 4 of the notice of appeal. Mr Ower, who appeared for Mr Learmont, accepted that by reason of s 142J(c)(iii) of the District Court Act (reproduced at [23] below) Mr Learmont had to establish that the District Court committed a jurisdictional error in order to obtain the relief sought in the summons.

10. For the reasons set out below, I would dismiss the appeal and the summons with costs.

Background

11. Mr Learmont had two separate periods of service as a police officer: the first from 26 June 1987 to 12 August 1999 and the second from 3 April 2005 to 15 March 2012. It is only in respect of the first period of service that he was entitled to claim a gratuity under the Act since it was only during that period of service that he was a contributor to the Police Superannuation Scheme governed by the Act.

12. In the statement Mr Learmont provided to STC when he applied for the gratuity, he described the relevant incident as follows:

On the 3rd March 1990 I attended a violent domestic incident. Whilst attempting to arrest the offender I was punched to the ground and kicked repeatedly in the lumbar and thoracic regions of my back, resulting in immediate excruciating pain. …

13. The incident occurred at around 12.15am on 3 March 1990. Mr Learmont was examined at the Wagga Wagga Base Hospital at about 4am on 3 March 1990, having arrived there at about 2am (according to the hospital notes). The contemporaneous medical notes of his examination at the hospital recorded the injury as “painful back” and added the following three notes: soft tissue injuries; tenderness over the rhomboid on left side; and full movement with mild pain. Neither the first nor third of those notes was expressly confined to the upper thoracic spine or the area of the rhomboid muscles.

14. A police force “occurrence pad” entry was signed by Mr Learmont after medical attention had been sought on 3 March 1990. The entry refers to the offender striking Mr Learmont to the side of his head with a closed fist; then putting him in a head lock; a struggle then ensuing; and Mr Learmont then being knocked to the ground and being kicked and punched “constantly to the back and Kidney area”. The entry records that Mr Learmont had “received the following injuries – bruising to the back and rib areas”.

15. It appears that Mr Learmont did not seek any further medical treatment for his back at around that time. His Honour’s finding in that regard was that there was no further medical treatment sought “in any sense proximate to the injury”. Nor did Mr Learmont take time off work following the incident.

16. Mr Learmont’s subsequent medical history, recounted in his Honour’s reasons, included a further episode of back injury on 31 August 2008 when Mr Learmont was trying to arrest another violent offender and an incident on 5 November 2008 when Mr Learmont injured his lower back and neck as a result of an accident involving a police motor vehicle. Mr Learmont also reported to Dr Bodel (an orthopaedic surgeon upon whose reports Mr Learmont relied in the District Court proceedings) that he had suffered an injury lifting an item while at work in 2011. None of those injuries entitled Mr Learmont to make a claim on the Police Superannuation Fund, which had by then been closed. Mr Learmont was discharged as medically unfit on 15 March 2012 on psychological grounds.

Relevant legislative provisions

17. Section 12D of the Act relevantly provides as follows:

12D   Gratuities to members hurt on duty in respect of loss of limbs, medical expenses etc

(1) STC may pay to a member of the police force who is hurt on duty or to a former member of the police force who was hurt on duty when he or she was a member of the police force a gratuity of such amount as STC determines, not exceeding the amount that, in the opinion of STC, would have been payable to the member or former member under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act1987 if the member were, or the former member had been, a worker for the purposes of that Act.

…

(3)   STC shall not grant a gratuity under this section to a member or former member of the police force unless:

…

(b)   where an annual superannuation allowance is not so payable, the injury to which the claim for the gratuity relates is determined, pursuant to subsection (4) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force.

(4)   Where a member or former member of the police force claims a gratuity under this section (otherwise than in respect of an injury referred to in subsection (3)(a)), the Commissioner of Police must:

(a)   decide whether or not the injury to which the claim relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, and

(b)   give written notice of the decision to STC and to the claimant.

18. The expression “hurt on duty” is defined as meaning, in relation to a member of the police force, “injured” in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987 (NSW), entitle the member to compensation under that Act. The definition of injury in the Workers Compensation Act is contained in s 4(a) of that Act as “personal injury arising out of or in the course of employment”.

19. As Basten JA outlined in Commissioner of Police v Kennedy [2007] NSWCA 328 at [42], the apparent intention of the Act (by reference to s 12D(3) and (4)) is broadly that the Commissioner of Police should determine questions involving causal connection with employment and STC should determine questions relating to the nature and extent of the compensation payable. Hence, in that case the Commissioner was required to determine whether Mr Kennedy had received an injury arising out of his work as a member of the police force whereas it was for STC to determine whether that injury had resulted in permanent impairment for the purpose of s 66(1) of the Workers Compensation Act.

20. Pursuant to s 21 of the Act, a person who considers himself or herself aggrieved by, relevantly, a decision made by the Commissioner of Police under s 12D(4)(a), may, within the period of six months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision. Section 21(4) of the Act provides:

(4)   The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made:

(a)   be confirmed, or

(b)   be set aside and replaced by a different decision made by the District Court.

21. Where the District Court makes a decision referred to in s 21(4)(b), that decision shall, for the purposes of the Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect (s 21(6)).

22. The jurisdiction being exercised by the District Court, on an application made pursuant to s 21(4) of the Act, is the residual jurisdiction conferred on the District Court by operation of the Compensation Court Repeal Act 2002 (NSW) (see s 142G of the District Court Act). The hearing proceeds as a hearing de novo. On such a hearing, a decision is given on the evidence presented at that hearing (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [13]).

23. Section 142J of the District Court Act provides as follows:

Decisions of Court when exercising residual jurisdiction

142J(1)   The following apply in the exercise of the Court’s residual jurisdiction:

(a)   a decision of the Court in any matter is to be on the real merits and justice of the case,

(b)   the Court is not bound to follow strict legal precedent,

(c)   subject to Subdivision 3:

(i)   a decision or proceeding of the Court is not vitiated by reason of any informality or want of form …

…

(iii)   no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction.

24. The reference to the real merits and justice of the case primarily removes evidentiary and procedural constraints which might otherwise limit the information to which the Court could properly have regard in the exercise of its residual jurisdiction (Swift v SAS Trustee Corporation [2010] NSWCA 182 per Basten JA at [34]; see also SAS Trustee Corporation v Pearce [2009] NSWCA 302 per Basten JA at [41]).

25. Pursuant to s 142N(1) of the District Court Act an appeal lies to this Court if a party to any proceedings before the District Court in its residual jurisdiction is aggrieved by an award of the Court in point of law, or on a question as to the admission or rejection of evidence. Pursuant to s 142N(2), this Court may, on the hearing of any appeal under that section, remit the matter to the District Court in its residual jurisdiction for determination by that court in accordance with any decision of this Court and may make such other order in relation to the appeal as the Court sees fit. For present purposes, therefore, what is required is that Mr Learmont demonstrate an error of law in the decision of the primary judge.

Proceedings

26. Proceedings commenced in the District Court pursuant to s 21(4) of the Act are to be commenced by way of statement of claim (see Sch 11 of the Uniform Civil Procedure Rules 2005 (NSW)). In Mr Learmont’s statement of claim the injury pleaded (at [4]) was an injury sustained to Mr Learmont’s “lower back”. The particulars provided of that injury were that Mr Learmont was kicked and punched in the lower back by a male when he attended a “violet [sic] domestic quarrel situation”.

26. Perhaps because attention is not generally focussed on pleading points in proceedings of this kind (having regard to s 142J(1) of the District Court Act), the Commissioner pleaded to what were no more than particulars of the pleaded injury (contained in [4] of the statement of claim) and denied them. In answer to the statement of claim as a whole, the Commissioner denied that Mr Learmont was entitled to any compensation whatsoever by operation of s 4 of the Workers Compensation Act (or, in the event that he suffered a disease of gradual onset, which the Commissioner also denied, by operation of s 9A of the Workers Compensation Act).

27. In the proceedings in the District Court, Mr Learmont relied on a number of medical reports, including, relevantly, those prepared by Drs Patrick and Bodel, as well as a report prepared by a further orthopaedic surgeon, Dr Giblin. Oral evidence was given by Mr Learmont as well as by another police officer who was present at the time of the incident (former Senior Constable Lunnon). Mr Learmont’s former de facto wife, Ms McDonald, gave evidence as to her observations of his condition after the incident.

28. In Dr Patrick’s medical report dated 11 October 2010, which had accompanied Mr Learmont’s application to STC, the nature of the injury was described as a “work related back injury”. Dr Patrick’s report noted, among other things, that Mr Learmont was knocked to the ground and the offender then kicked and punched him violently, with a number of kicks to his back and kidney region. Dr Patrick described Mr Learmont’s symptoms at the time of the report as including lower thoracic back pain and some muscle cramping, radiation of symptoms into both buttocks and lower limbs (worse into the left leg than the right leg), and ongoing back pain mainly across the lumbar region of the spine to both left and right. Dr Patrick’s opinion, based on the history given to him and his examination of Mr Learmont (but without the benefit of any x-rays or imaging), by reference to various clinical notes, was that:

I believe this incident has resulted in significant back injury with effect on both lumbar and lower thoracic spinal regions and with likely lumbar facet injury with subsequent development of retrolisthesis at L2/3 level and also disc bulges at T12/L1 at thoracolumbar region and possibly some disc injuries at L1/2 level below and also at L3/4 and L5/S1 discs. He was thought by Dr Haider in January 2009 to be suffering from some right sided radiculopathy at L2/3.

…

The specified infirmity of body or mind which so disables him consists of the thoracic and lumbar facet injury and thoracolumbar and lumbar disc injuries with evidence for resultant radiculopathy.

30. I interpose to note that it was accepted by the parties that “radiculopathy” refers to radiating pain or radiating nerve symptomatology. I also note that the Commissioner maintains, on the basis of Dr Patrick’s report, that the claimed injury was an injury to the discal structure of the lower back. I discuss this further in due course.

31. Dr Giblin examined Mr Learmont prior to the District Court proceedings and gave a provisional diagnosis of a significant soft tissue injury to Mr Learmont’s low back, initially occurring in the course of his work in March 1990 and subsequently being re-aggravated in a material fashion in injuries noted from 2008 and 2009. His report was again based on history obtained from, and his examination of, Mr Learmont.

32. Dr Bodel examined Mr Learmont on 23 May 2014. He noted that Mr Learmont had tenderness on palpation at the lumbosacral junction. He found no evidence of nerve root irritability and no clinical sign of radiculopathy. Dr Bodel’s diagnosis at that stage was of:

… a disc injury at the lumbosacral junction, caused by the initial injury on 3 March 1990 and further aggravated by the subsequent events on 31 August 2008 and in the motor vehicle accident on 5 November 2008 as well as the further episode lifting the transformer in the year 2011.

33. However, significantly, in a supplementary report of 8 December 2014, Dr Bodel expressed the opinion that in retrospect it was very difficult to be certain whether or not there was an “injury” to the back on 3 March 1990 “in the form of a disc injury which is the current injury which is causing [Mr Learmont] this mechanical backache”. Consistently with the way in which the injury had been pleaded, what Dr Bodel had been asked to consider was whether an injury had been suffered to Mr Learmont’s “lower back” on 3 March 1990. Hence the above opinion must be read as relating to the lower back.

34. Dr Bodel considered the documentation to be very confusing (there apparently referring to the police documentation in relation to the injury). Dr Bodel said that there was no medical documentation with which he had been provided or of which he was aware that would confirm that there was a disc injury at the time “although based on the history given by Mr Learmont there certainly may well have been such an event”.

35. Asked to identify what pathological changes, if any, had occurred in the incident, Dr Bodel noted that Mr Learmont had given evidence that there were abrasions to the back and bruising but that there was no mention as to whether an x-ray had been taken at the time of the first presentation to the hospital or any subsequent stage to confirm any structural pathology identified at the time. He said:

It is therefore very difficult to be absolutely certain as to what other “significant pathological changes” occurred at that time in the absence of any documentation. Based on the history, it appeared likely that a disc injury had occurred although it is very difficult to confirm that now in light of the medical management of this injury which has occurred over the years …

36. In answer to further questions, Dr Bodel said, in somewhat contradictory terms, first that the scans done after the incidents in 2008 did show “fairly well established disc pathology” and that “it is probable in my view that this could have occurred as far back as March 1990” (though going on to say that there appeared to be no other medical evidence to confirm that was the case); but went on to accept that Dr Dalton (a consultant in rehabilitation medicine, who gave an opinion relied upon by the Commissioner) had given a “straightforward assessment of the medical documentation” and that his “literal interpretation” was quite correct and concluded that it was “possible” that the 3 March 1990 event “could have caused a disc injury which is the precursor of the abnormalities seen in the latest scan”.

37. Dr Dalton’s opinion, to which Dr Bodel had referred in his supplementary report, was (based on his review of the medical records and the history there given) that he could find no evidence to support a causal connection between the history of chronic recurrent lower back problems and the 3 March 1990 incident. Referring to x-rays taken in early 2003 which revealed evidence of degenerative disc disease and spondylosis at the L2/3 level, Dr Dalton said:

It is inconceivable that the soft tissue injury suffered by Mr Learmont in March 1990 would have resulted in the subsequent degenerative disc disease and lumbar spondylosis at the L2/3 level which was noted on X-rays some 13 year [sic] later. If Constable Learmont had suffered a significant lumbar disc injury at the time of the alleged assault then his symptoms would have persisted and he would have undoubtedly had significant pain on an ongoing basis which is not recorded in the contemporaneous medical records.

Regardless of that the mechanism of injury described by Constable Learmont would not, in my opinion, have resulted in an acute lumbar disc injury and certainly the contemporaneous medical records do not support any relationship between the soft tissue bruising that he likely sustained at that time and the delayed onset of acute back pain some five years later.

In my opinion the medical reports demonstrate a typical history of recurrent back pain attributable to degenerative disc disease and lumbar spondylosis. Typically this manifests as intermittent acute episodes of back pain and spasm, often short-lived, with long pain free periods between episodes. It is also evident that the subsequent CT scan of the lumbosacral spine revealed widespread multilevel spondylotic change and degenerative disc disease, notably at the L2/3 level, but also with evidence of degenerative change in the sacroiliac joints and lower lumbar facet joints. There is no conceivable way that such widespread changes could be attributable to a single traumatic incident, notwithstanding that punching and kicking to the lower back region would not result in such pathologies.

…

In my opinion Mr Learmont appears to have suffered soft tissue bruising to his back and rib region as a result of the alleged incident. The effects of that injury resolved rapidly probably within a matter of days, with no indication that he was experiencing any ongoing lower back problems from that time on. The mechanism of his injury and injuries suffered at that time could not conceivably have resulted in the degenerative changes subsequently noted at L2/3 and later at multiple levels. There is no causal connection between the soft tissue injuries sustained in 1990 and the later history of recurrent back pain which was attributable to degenerative lumbar disc disease at the L2/3 and other levels. (my emphasis)

…

It is my opinion that the acute episode which occurred in 1995 was consistent with a spontaneous episode of back pain and spasm related to degenerative disc disease.

Primary judgment

38. The primary judge recounted the relevant history of Mr Learmont’s back condition and its impact on his work and life by reference to reports made by Mr Learmont to various doctors and incidents that had occurred after the date of the relevant domestic violence incident. In the course of so doing, his Honour noted various matters that he considered cast doubt on the reliability of Mr Learmont’s evidence. His Honour ultimately concluded that there was little truth in any of the history given by Mr Learmont to Dr Patrick (or to other medical practitioners) or contained in Mr Learmont’s application for s 12D benefits; and that the challenge made by the Commissioner to Mr Learmont’s accuracy, reliability and honesty had been largely successful. No challenge is made to that finding.

39. His Honour reviewed the medical evidence in some detail. As to Dr Bodel’s supplementary report, he noted, as cannot be disputed, that saying that something was “possible” did not amount to proof on the balance of probabilities. His Honour indicated that were the matter res integra he would readily accept the opinion of Dr Dalton. The primary judge reiterated that he could not accept Mr Learmont as an accurate, reliable or honest witness.

40. Then, having noted the submission made for Mr Learmont to the effect that all the primary judge was concerned with was whether Mr Learmont had injured his back on 3 March 1990 and that it was then up to STC to determine the relationship, if any, between the impairment claimed and that injury, his Honour said:

In the current case it is to be borne in mind that the plaintiff in his application under s 12D referred to an event on 3 March 1990 leading to permanent impairment of the back and loss of efficient use of each leg at or above the knee. There is no suggestion that the plaintiff injured either of his legs in the event of 3 March 1990. However, it is common for a low back injury involving damage to a disc to ultimately lead to some permanent loss of efficient use of each leg at or above the knee because of either radiculopathy or referred pain or a mere mechanical problem which inhibits the use of each leg.

The injury therefore that the plaintiff relies upon must be one which had the potential to lead to the loss of efficient use of each leg. (my emphasis)

41. After pointing out that the word “back” could mean a number of different things, his Honour said:

When the plaintiff refers to a back injury one must be careful to know to what he is actually referring. Of course, the plaintiff now says that he injured his low back. There is some corroborative evidence in that regard called from the plaintiff’s former de facto wife René Anne McDonald, who would appear to be the lady with whom the plaintiff ceased to have a relationship in late 1996 or early 1997 and with the now retired Senior Constable Lunnon, who was a person present at the time of the assault suffered by the plaintiff on 3 March 1990. However, neither Ms McDonald nor Mr Lunnon distinguished which part of the body was meant by “the back”. (my emphasis)

42. His Honour then said that he did not accept Mr Learmont’s assertion that he injured his low back “as such”. Referring to the outpatient record of the Wagga Wagga Base Hospital as the only contemporaneous medical evidence, his Honour noted that: there was a recorded complaint of a “painful back” (but said that this did not indicate what part of the back was involved); that there was reference to unspecified soft tissue injuries and tenderness over the rhomboid on the left-hand side; and also that the note recorded that there was full movement but with mild pain (but without stating the location of the pain).

43. His Honour then made reference to The Attorney’s Dictionary of Medicine definitions of the two rhomboid muscles, rhomboideus major and rhomboideus minor, and to Concise Gray’s Anatomy for the fact that each of the rhomboid muscles was enervated by the fifth cervical nerve root.

44. His Honour readily accepted that Mr Learmont had injured his upper thoracic back in the incident of 3 March 1990, taking into account the location of the rhomboideus major muscle as seen in the diagram of muscles in Concise Gray’s Anatomy (p 75) but went on to say:

The plaintiff’s case is postulated on an injury to the low back because only an injury to the low back could cause a problem in either of the plaintiff’s legs. A reference to any dermatomal chart shows that the legs are enervated by the nerve roots numbered L1 to S5, although S3 and S4 are confined to the peri-anal region in the natal cleft. For there to be some affectation of either leg there must be injury to a nerve root between L1 and S2, that is, to either the thoracolumbar disc down to the second sciatic nerve root, which passes out of the sacrum, the level above the S1 level coming from the L5-S1 disc level.

As I said, I can only infer from exhibit M [the Wagga Wagga Base Hospital contemporaneous note] an injury to the upper thoracic spine no lower than T8-T9. The injuries postulated by the plaintiff require a finding that he has injured some discal structure from T12-L1 to the S2 level and on the evidence before me I’m unable to so find. (my emphasis)

45. Responding to the submission made for Mr Learmont to the effect that all the primary judge was required to find (or properly could find) was an injury to the back, his Honour said:

The question posed by a claimant under s 12D cannot fix the inquiry which must be made as to whether the body part in question was injured in a compensable event. Merely by saying that the plaintiff injured his back in the event of 3 March 1990 does not answer the question of what part of the body was injured. The question that has to be determined on this plaintiff’s application under s 12D is what part of the body was injured such that it leads to impairment of the back and the loss of efficient use of each leg. The only answer to that question is some type of damage to the back at a level of T12-L1 or lower. I am not persuaded the plaintiff sustained any such injury in the event of 3 March 1990. (my emphasis)

46. Hence, his Honour confirmed the Commissioner’s decision and dismissed the claim.

Appeal

Ground 1 – did the primary judge address the wrong question?

Submissions

47. As he did before the primary judge, Mr Learmont argues that the role of the Commissioner (and therefore of the primary judge) on the s 12D application was limited to an enquiry as to whether he had sustained a back injury on 3 March 1990. It is submitted that there was no need to pose the question as to which part of the back was injured; nor as to whether there was relevant disc damage or root compromise and that, in exploring that further issue, his Honour impermissibly narrowed the claim, posing an irrelevant question and trespassing upon the statutory responsibility of the trustee, STC.

48. Mr Learmont points to the fact that compensation payable in respect of “permanent impairment of the back” under ss 66 and 67 of the Workers Compensation Act does not differentiate as to which part of the back was impaired. Accordingly, as I understand the submission made for Mr Learmont, when identifying the “injury to which the claim relates” for the purposes of s 12D(4)(a) (i.e., so as to determine whether it was an injury caused by him being “hurt on duty”), it is not necessary to differentiate any particular part of the back as having been injured. (That may be so but it does not address the situation where a claimant has in fact specified which part of the back was injured whilst hurt on duty, as Mr Learmont did when he pleaded his claim.)

49. Mr Learmont accepts that the finding of an injury obliges a consideration of the pathological change(s) in the body. However, he submits that a determination of the severity or extent of the injury, i.e., its consequences, is not a matter for the Commissioner, but is a matter for STC; and that the restrictive assumptions and analysis of the primary judge precluded any later consideration by the trustee as to whether, say, the thoracic back injury had resulted in any permanent impairment.

50. In oral submissions, Counsel for Mr Learmont accepted that part of the application that had been made to STC related to permanent loss of leg use (T3.3) and seemed to accept that the claim could be described as relating to a back injury which could potentially give rise to consequences for the leg (T3.8). However, he went on to argue that any injury to the back (whether or not it involves injury to the discal structure) is potentially capable of resulting in the loss of use of the legs (referring to Department of Public Works v Morrow (1986) 5 NSWLR 166 where it was accepted that loss of efficient use of a limb could be caused by pain in another part of the body). It is submitted that the conclusion that only an injury to the back at T12-L1 or lower could lead to a loss of use of the leg at or above the knee is inconsistent with the recognition in Morrow as to referred pain (see e.g. T 20.4-8).

51. The submission made was, in effect, that all that the Commissioner had to decide was whether Mr Learmont had injured his back while on duty and that it would be sufficient, for that question to be answered in the affirmative, that there was a finding that injury had been caused to the upper thoracic spine while on duty (and/or that there was evidence that Mr Learmont had sustained soft tissue injuries and bruising to his back); it then being for STC to determine the consequences of that injury. Mr Learmont submits that the primary judge thus should have concluded that his back was injured in circumstances that amount to his having been “hurt on duty”. He maintains that the argument that injury to the lower back must be established in order to sustain a finding of loss of use of the legs was not put to his Honour and that, had it been, he would have referred his Honour to the Morrow case.

52. Mr Learmont identifies the relevant error of law as being that, in confining the consideration of his injuries to whether he had suffered an injury to the back which had the potential to lead to the loss of efficient use of each leg, the primary judge asked an irrelevant question and impinged on the statutory responsibility of the trustee. He argues that the injuries claimed in relation to the legs were in effect separate claims (T11.40), severable from the injury to the back, and hence that his Honour wrongly construed his application and made a wrong assumption as to the pathological damage necessary to prove the injury to the back by requiring Mr Learmont to demonstrate damage to the back at T12-L1 or lower as a result of the injury on 3 March 1990.

47. The Commissioner, in response, submits that the claim made for leg impairment was not related to any particular insult upon the legs due to the claimed incident but was a claim that, by reason of the back complaint, there was referred pain and diminished use of the legs, and therefore that his Honour was required to consider the disc pathology so as to satisfy himself that there was an injury for the purposes of s 4 of the Workers Compensation Act. It is submitted that the reference to Morrow is misconceived, since in Morrow’s case it was the assessment process that was under consideration (that being a matter for STC).

Determination

54. In Kennedy (at [26]) Hodgson J (as his Honour then was) said that, in a broad sense, the Act disclosed an intention that medical issues be addressed by the trustee and operational issues by the Commissioner; but his Honour accepted that there could be no clear demarcation and that the Commissioner must have to determine medical issues “at least in the areas identified”. The reference to the areas identified appears to be a reference to the Commissioner’s submission that the question whether a s 4 injury had been suffered might require medical expertise, for example where the alleged injury was a disease or an aggravation of a disease; or where a specified infirmity under s 10B of the Act had been identified by STC. It was thus accepted that in some circumstances it may be necessary for the Commissioner to address medical issues in order to establish that a claimed injury was caused in circumstances falling within the expression “hurt on duty”.

55. The dispute between the parties in the present case is, in essence, as to the primary judge’s identification of the “injury to which the claim relates”, for the purposes of s 12D(4)(a), as being a lower back injury which had led (or perhaps which had the potential to lead) to the loss of efficient use of each leg or an injury to some discal structure from T12-L1 to S2. The Commissioner contends that the primary judge was correct, while Mr Learmont’s position is that the claimed injury should have been identified simply as a back injury.

56. As to whether the primary judge addressed the correct question, a distinction must be drawn in my opinion between the description of the injury on the initial application form and the way in which the injury was subsequently pleaded. In the initial application form, three separate injuries appear to have been claimed (one to the back and one to each of the legs). In the pleading, however, the injury was pleaded simply as a claim to the “lower back”. Having regard to the fact that the District Court proceedings operate as a hearing de novo, the manner in which the injury is there pleaded is that which must frame or confine the issue to be determined by the court (subject only to the requirement that the court have regard to the real merits and justice of the case).

57. The difficulty I have with Mr Learmont’s argument that the primary judge should at least have made a finding that the upper back injury was caused by his being “hurt on duty” is that no such injury was pleaded. It cannot therefore have been the “injury to which the claim relates” for the purposes of s 12D(4)(a) of the Act. Mr Learmont’s claim for a gratuity, as pleaded in the District Court, was based on an injury to the lower back.

58. Thus, even leaving aside whether this would have been an error in point of law, his Honour cannot be said to have erred in not making a finding that there was an injury sustained to the upper thoracic spine while on duty. No such injury was claimed. To the extent that the way in which the case was conducted may have departed from the pleading then it might be said that a determination of the real merits of the case required that his Honour not be constrained by the pleading. However, it is difficult to accept that there was a consensual departure from the pleaded case in that regard in circumstances where the Commissioner was arguing that the claimed injury was one that was sustained to the lower back and involved damage to the discal structure of the back and Mr Learmont was arguing, not for a finding of a upper thoracic spine injury, but simply for a finding that there was an injury to the back unconstrained by reference to any particular part of the back.

59. Mr Learmont concedes that his argument on ground 1 of the appeal would have been foreclosed had the primary judge concluded (consistent with his reasons) that there was no injury to the lower back caused while on duty but that an injury to the upper thoracic spine was caused on duty (T17.42; T18.30) but maintains his submission that it was the role of the Commissioner simply to decide whether the back was injured in circumstances of having been “hurt on duty”.

60. Given the manner in which the claim was pleaded I see no error in his Honour addressing the question whether a lower (not upper) back injury had been caused by the event of 3 March 1990. That is precisely what Mr Learmont had contended was the injury he sustained.

61. However, his Honour appears to have gone further than that and posed the question as to whether there was a discal injury to the lower back (on the basis of his conclusion that only such an injury could have caused a permanent impairment or affectation to the legs).

62. The difficulty with such an approach is twofold. First, as I understand them, the medical opinions did not specifically address the question whether it was or was not possible for the claimed impairment to the use of the legs to be caused by something other than damage to the discal structure of the lower back. There was a reference in Dr Patrick’s report (referred to above) to another doctor (Dr Haider) having thought Mr Learmont was suffering from some right side radiculopathy at L2/3 and concluding that the disability consisted of injuries with “evidence for resultant radiculopathy” but Dr Bodel’s report found no evidence of nerve root irritability and no clinical sign of radiculopathy. The medical evidence (and I refer here in particular to Dr Bodel’s and Dr Dalton’s reports) seems largely to have addressed the question whether the degeneration to the discal structure in Mr Learmont’s lower back (evident on the 2003 scans) was likely to have been caused by a spontaneous event such as that which occurred on 3 March 1990 (and the question whether Mr Learmont’s symptoms were consistent with damage being occasioned to the discal structure of his back at the time of the 3 March event). This raises the complaint made by ground 2, which I will consider shortly.

63. The second difficulty is that, by posing the question as to damage to the lower back of a kind which had the potential to cause impairment to the legs, his Honour seems to have narrowed the claimed injury to a particular kind of lower back injury; i.e., one that could cause permanent affectation by way of radiculopathy to the legs. That was not the injury that was pleaded. Rather, the injury was simply pleaded as an injury to the lower back. Arguably, that would have been satisfied by evidence of soft tissue bruising to the lower back, whether or not such an injury could have caused impairment to the legs or degenerative change to the discal structure of the back. (Though it seems somewhat fanciful to postulate that soft tissue bruising alone would lead to a permanent impairment of the back some years later so as to support a claim to a gratuity, Mr Learmont would argue that that question is one that must be referred to STC.)

64. That said, much of the medical evidence addressed that very issue. There appears to have been no complaint made to the primary judge at the time that the medical evidence was adduced that it was irrelevant to the issue that his Honour had to address. Insofar as his Honour was required to deal with the “real merits” of the claimed injury to the lower back he cannot in my opinion be said to have erred when he did so by reference to that which was the clear focus of the medical evidence.

65. To the extent that the primary judge narrowed the question as being whether there was lower back damage capable of leading to permanent affectation of the use of the legs, i.e., damage to the discal structure of the back, the question is whether that complaint is one going to the fact-finding process and the inferences to be drawn from the facts, or whether it would be an error in point of law.

66. Accepting that no satisfactory test of universal application has been formulated in this regard (Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394) and that attempts to establish rules for drawing the line between questions of fact and questions of law have been described as capable of generating “artificial, if not illusory” distinctions (see Kirby J in Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [72], quoting from the joint judgment in Collector of Customs v Agfa-Gevaert Ltd), the finding as to the particular type of back injury caused by the 3 March 1990 incident seems on its face more likely to be a question of fact. Nevertheless, in Judicial Review of Administrative Action (M Aronson and M Groves, 5th ed, 2013, Thomson Reuters) at [4.130] the authors posit that misconception of the factual issue that must ultimately be determined before making a particular decision amounts to an error of law (referring there to Chief Executive Officer, Department for Child Protection v Grinrod (No 2) [2008] WASCA 28; (2008) 36 WAR 39). In Grinrod, Buss JA (with Wheeler JA agreeing) held that the Department for Child Protection, in refusing the respondent clearance for working with children, had erred in law in considering that the relevant question which they had to determine was whether he was guilty of child sex offences with which he had been charged but not ultimately prosecuted, rather than the applicable test of whether he presented an “unacceptable risk”.

67. The Commissioner argues that, in circumstances where the pleaded injury was a claim to the lower back, the inference his Honour made - that the injuries claimed by Mr Learmont require a finding that he had injured some discal structure – if made in error, was an error of fact, and was not so against the evidence that it would justify a finding that in doing so his Honour failed to exercise jurisdiction.

68. The statement by the primary judge to the effect that he had to be satisfied that Mr Learmont had suffered an injury which had the potential to cause loss of use of the legs was based on the injury having been pleaded as an injury to the lower back (not “the back” and not “the upper thoracic spine”). If his Honour was incorrect in concluding that, in order to find that an injury to the lower back (as pleaded) had been caused by the incident, it was necessary to determine whether there was discal injury to the lower back capable of causing injury to the right and left legs (the relief claimed encompassing the alleged legal injuries), I see this as an error in the fact-finding process. Such an error would not amount to an error of law unless it could be said that there was no evidence to sustain the factual finding or that the reasoning process was so irrational or illogical as to amount to a failure to discharge the Court’s statutory duties. That raises the challenge raised by the summons, with which I will deal shortly.

69. In the context of medical evidence focussing largely on whether the degenerative changes to Mr Learmont’s back were referable to, or consistent with, an injury caused in the March 1990 incident, the inference drawn by the primary judge that the injury to which the claim related was a back injury involving damage to the discal structure of the lower back was not an error of law.

70. Ground 1 is not in my opinion made out.

Ground 2 – was there an impermissible application of the primary judge’s own knowledge of medical matters?

Submissions

71. Mr Learmont argues that there was a denial of procedural fairness in that his Honour impermissibly made reference to his own knowledge when concluding that only disc damage at the T12-L1 to S2 level could cause permanent impairment to or loss of use of the legs. Weight is placed on what was said by Beazley JA, as her Honour then was, in Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419 at [57]-[59], when considering an appeal from an assessment of damages carried out in the District Court in the exercise of the jurisdiction conferred on that court under the Motor Accidents Compensation Act 1999 (NSW). Her Honour there accepted that recourse to medical dictionaries and anatomical tables might be appropriate to ascertain the meaning of terminology used in medical evidence but said that such material could not be used to confirm a trial judge’s view of a medical diagnosis.

72. No complaint is here made by Mr Learmont as to the references the primary judge made to The Dictionary of Medicine and Concise Gray’s Anatomy, insofar as his Honour referred to those texts to inform himself as to the location of the rhomboid muscles; nor as to the reference to a dermatomal chart. However, it is submitted that the analysis that followed disclosed an application of personal medical knowledge which was not in evidence; in particular his Honour’s observations on nerve root damage. Mr Learmont argues that there was no evidence to the effect that it was necessary for there to be an injury to a nerve root between L1 and S2 for there to be an affectation of either leg; nor was there evidence on which it was open to his Honour to conclude that the injuries postulated by Mr Learmont required a finding of injury to some discal structure from T12-L1 to the S2 level.

73. The complaint in effect is that what the medical texts would show is what nerve roots were connected to what but that they would not inform the reader as to whether impairment or injury to the legs could only arise from injury to the discal structure. As noted earlier, Mr Learmont argues that Morrow’s case is inconsistent with a conclusion that injury to the discal structure of the lower back is required for there to be any sort of permanent impairment or injury to the legs.

74. The Commissioner argues that there was no procedural unfairness occasioned to Mr Learmont since questions with respect to the identification of the rhomboid and its proximity to the thoracic ribcage and as to referred pain emanating from the lumbar spine were taken up by his Honour with the parties in closing submissions. It is also submitted that his Honour’s findings were supported by the evidence of Drs Patrick and Bodel. Reference is made to Arian v Nguyen [2001] NSWCA 5, where Ipp AJA (at [22]) observed that it was not possible for the trial judge of her own knowledge to determine whether the MRI scan, on the basis of the MRI report, had revealed significant and severe disc injuries but nevertheless concluded that other medical evidence justified the conclusion to which she had come. The Commissioner also notes that Dr Patrick’s 11 October 2010 report referred to the connection between diminished sensation in both legs corresponding to S1 nerve root distribution and (in the case of the left leg) L5 nerve root distribution and argues that his Honour’s analysis did no more than “confirm” Dr Patrick’s evidence and expand the possible “offending discs” to the outer limits.

Determination

75. This Court was not taken by the respondent to any passages in the medical reports that would justify the conclusion drawn by the primary judge that only damage to the discal structure of the lower back could result in a permanent affectation to the legs. However, it was open on the basis of Dr Dalton’s evidence for his Honour to conclude that the degenerative disc disease and spondylosis observed on the 2003 scans were not caused, on the balance of probabilities, by the 1990 event; and that there was no evidence of radiculopathy. Dr Dalton’s report did not support a finding of any injury to the lower back other than the soft tissue bruising that Dr Dalton considered had rapidly resolved itself. Dr Bodel’s supplementary report did not support a finding of more than a possibility that the degenerative changes and disabilities suffered by Mr Learmont had been caused by the incident in 1990.

76. The issue whether or not there was radiculopathy or referred pain was debated in closing submissions, there being discussion as to matters such as the identification of the rhomboid and the question of referred pain emanating from the lumbar spine.

77. In the circumstances therefore, while I accept that there is a basis for complaint that the primary judge impermissibly referred to matters within his own knowledge and not the medical evidence, I do not accept that there was any procedural unfairness thereby. Ground 2 is not established.

Ground 3 – adequacy of reasons

Submissions

78. Linked to ground 1 is the complaint by ground 3 that his Honour failed to address the submission regarding the limited nature of the enquiry required by s 12D(4)(a).

79. Reference is made to Goodwin v Commissioner of Police [2010] NSWCA 239 as to error in point of law in circumstances where a critical submission identified by the primary judge as central to the claim was not addressed (see Basten JA at [39]-[43]). It is submitted that his Honour fell into error in point of law by not addressing Mr Learmont’s submission that the pathological consequences of the injury were a matter for the trustee, not for the Commissioner. It is submitted that the failure to address Mr Learmont’s submission on the division of powers was more than a failure to give adequate reasons (as the Commissioner has submitted); rather, it was an error that was the cornerstone of his Honour posing the wrong question and pursuing an erroneous analysis of the facts.

80. The Commissioner argues that the primary judge gave ample reasons as to why he thought an analysis of the pathology was essential given the inclusion of the legs in the complaint, and argues that Mr Learmont made a forensic decision at trial to argue that the only permissible finding there could be was a back injury.

Determination

81. Ground 3 is not made out. His Honour explained why he considered it necessary to consider the nature of the injury to which the claim related – that being that since “back” injury could refer to different parts of the back it was necessary to determine what was claimed. His Honour also addressed (albeit briefly) and rejected the proposition that a party could, in effect, limit or fix the nature of the enquiry to be carried out (i.e., by framing his or her claim in broad terms or without specificity). His Honour was clearly mindful of the submission. In the circumstances I see no error in the brevity with which his Honour dealt with this issue.

Summons seeking relief in the supervisory jurisdiction

Submissions

82. It is submitted that his Honour’s finding that the injury to Mr Learmont’s back was confined to the upper thoracic spine was unreasonable on the evidence and failed to take into account relevant evidence on point. It is argued that this constituted jurisdictional error in that it was a failure to exercise jurisdiction.

83. Mr Learmont refers in this regard to the hospital clinical notes; the occurrence pad entry; and the oral evidence of Senior Constable Lunnon and Ms McDonald.

84. As to the first, Mr Learmont notes that the hospital note specifically referred to “painful back”. It is said that it was not necessary for his Honour to infer from his own examination of the note that the back pain should be limited to the location of the rhomboid. It is also noted that tenderness to the rhomboid did not exclude the possibility that there was injury elsewhere to the back.

85. As to the occurrence pad entry, which former Senior Constable Lunnon accepted accorded with his recollection of what had occurred, Mr Learmont notes that this supported the conclusion that there was constant kicking and punching to the kidney area. Reliance is also placed on the oral evidence given by former Senior Constable Lunnon, which it is pointed out did not differentiate which part of the back was kicked but rather stated that Mr Learmont’s back was generally kicked and confirmed the dramatic and violent nature of the assault. It is submitted that to dismiss his evidence as unhelpful for lack of specificity, as the primary judge did, was prima facie unreasonable. Reference is also made to Ms McDonald’s evidence as to the pain Mr Learmont experienced in the aftermath of the incident.

82. Mr Learmont argues that the particularly narrow construction of the evidence was illogical and unreasonable in the sense identified by the High Court in Minister for Immigration and Citizenship v SZDMS [2010] HCA 16; (2010) 240 CLR 611 as amounting to jurisdictional error.

83. It is submitted that it was unreasonable for the primary judge to have found in light of the above evidence that Mr Learmont’s back injury was limited to an injury no lower than the thoracic spine.

84. The Commissioner argues that it was not illogical or unreasonable for his Honour to deal with the evidence of the witnesses in the manner in which he did. It is noted that there was no challenge to the finding that Mr Learmont was not a reliable witness and hence it is argued that it is not illogical that his Honour would place reliance on the medical records.

85. The Commissioner submits that it is clear from Dr Patrick’s report that what was being claimed was that disc injury had been sustained to the lower back on 3 March 1990; and notes that Dr Patrick’s opinion was based largely on history taken from Mr Learmont, whose reliability was challenged. The Commissioner points out that Dr Bodel’s evidence did not support a finding on the balance of probabilities that a disc injury was sustained.

86. The Commissioner argues that a fair reading of the hospital notes justifies the inference that his Honour drew as to there being no lower back injury but says that, in any event, if the wrong inference was drawn from the hospital note that is a mistake of fact not an error of law. The Commissioner emphasises that Dr Bodel recanted his opinion as to the connection between the injury on 3 March 1990 and the disc injuries in his supplementary opinion (for the reasons there stated). The Commissioner points to the generality of former Senior Constable Lunnon’s evidence (limited to his acceptance that the occurrence pad entry accorded with his recollection) and to the general descriptions given by Ms McDonald.

Determination

91. I do not read his Honour’s reasons as saying that the only injury Mr Learmont sustained was to his upper thoracic spine. Rather, what I read his Honour as saying was that the only injury that he was able to infer from the hospital notes was an injury to the upper thoracic spine; in other words his Honour was not satisfied that the hospital notes established, on the balance of probabilities, an injury to any other part of the back. I see no error in that conclusion.

92. I accept that there was other evidence that would have supported the finding that there was a soft tissue injury to the back that probably resolved within a matter of weeks and did not cause further problems. The question is whether the failure so to find was illogical and unreasonable in the sense identified in Minister for Immigration and Citizenship v SZMDS. The threshold for irrationality and unreasonableness is a high one in that it was made clear in SZMDS that a court should not lightly interfere with administrative decision-making (per Crennan and Bell JJ at [122]). In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 French CJ considered that a distinction might arguably be drawn between rationality and reasonableness, on the basis that not every rational decision is reasonable (see [30]) but found it unnecessary in that case to undertake a general consideration of that distinction.

93. It is unclear whether the use of the word “unreasonable” in Mr Learmont’s summons is intended to encompass those grounds of review that fall under the broad heading of “irrationality” or whether it identifies unreasonableness as a specific and discrete ground of review in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229). Unreasonableness in this second sense is a ground of review that continues to be exceptional given its apparent lack of precise legal framework and potential for transgressing into merits review.

94. It is rare that it is possible to isolate unreasonableness as an independent ground of judicial review (separate from, for example, taking into account irrelevant considerations, or ignoring relevant considerations). Disagreement, or even a strong sense of disagreement, with a decision, does not amount to unreasonableness. So much is apparent from the joint judgment of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 in which their Honours noted (at 626) that statements of disagreement with a decision expressed in the language of unreasonableness might amount to no more than “emphatic ways of saying that the reasoning is wrong, [in which case] they may have no particular legal consequence”.

95. In SZMDS, Crennan and Bell JJ (at [129]) noted that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement. Significantly, their Honours remarked (at [131]):

… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

96. Gummow ACJ and Kiefel J in SZMDS, referring to the unreasonableness principle as a ground of review, noted (at [40]) that the question whether a decision is so flawed as to be irrational should “not receive an affirmative answer that is lightly given”. Their Honours there stated:

The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.

97. The approach required in addressing alleged unreasonableness or irrationality was considered in Minister for Immigration and Citizenship v Li, which reformulated the generic Wednesbury standard of unreasonableness review to one concerned with the statutory context in which the decision was made. Li was concerned with the review of a discretionary decision of a Migration Review Tribunal to refuse an adjournment. The High Court found that the decision was unreasonable because, despite the reasons offered by the Tribunal, the refusal to grant an adjournment lacked what the plurality described as “an evident and intelligible justification” (at [76]).

98. Further, in considering the standard of legal reasonableness, the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 noted (at [48]) that “the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case”.

99. Unreasonableness grounds of review are concerned with the decision itself; not with the process at which the decision was reached (Singh at [47]). The decision at issue in the present case is the decision that Mr Learmont did not sustain the injury to his lower back in the 3 March 1990 incident to which his claim for a gratuity related. Having regard in particular to Dr Dalton’s evidence and Dr Bodel’s supplementary report, I do not accept that this decision was so flawed as to be irrational. To adopt the words of the plurality in Li at [76], his Honour’s decision did not lack an evident and intelligible justification when the evidence is considered as a whole.

Conclusion

100. For the above reasons I consider that the appeal and the summons should be dismissed with costs.

101. SACKVILLE AJA: I have had the advantage of reading the judgment of Ward JA. I agree with the orders her Honour proposes and generally with her Honour’s reasons. I add the following observations.

102. The hearing before the District Court occupied two days in October 2014 and two days in April 2015. Mr Learmont was represented on the first two days of the hearing, but a different representative appeared on his behalf on the third and fourth days.

103. The change of representation led to a change in Mr Learmont’s position at the hearing. By the third day, Mr Learmont had given evidence and had been extensively cross-examined. In addition, most of the medical reports and records relied on by the parties had been tendered. Much of this evidence was directed to the nature of the back injuries sustained by Mr Learmont in the incident of 3 March 1990 and to the issue of whether the injuries were related to his ongoing condition.

104. On the third day of the hearing, after the change in legal representation, evidence was given by Mr Learmont’s former partner (who had been a police constable stationed at Wagga Wagga in 1990). The parties also tendered further medical records and medical reports. Counsel appearing for Mr Learmont objected to some of the tendered material on the ground that they were irrelevant to the issue his Honour had to determine. The primary Judge overruled the objections and admitted the tendered documents.

105. Counsel for the parties made their final submissions on the fourth day of the hearing. Counsel for Mr Learmont advanced a contention that the primary Judge described as a “heresy”. This was the contention, repeated in this Court, that the primary Judge’s role under ss 12D(4) and 21 of the Police Regulation (Superannuation) Act 1906 (NSW) (the Act) was confined to determining whether Mr Learmont had sustained a back injury of some kind on 3 March 1990. According to counsel, it was no part of his Honour’s function to decide whether Mr Learmont had injured his lower back on that date, notwithstanding that his statement of claim alleged precisely such an injury.

106. Of course, if this submission was correct, virtually all the medical evidence admitted in the District Court, including much that had been admitted without objection, was irrelevant. On counsel’s argument, it would have been enough for Mr Learmont to tender evidence demonstrating, for example, that he had merely sustained significant bruising to his upper back. Other issues would be within the province of the SAS Trustee Corporation.

107. Counsel for Mr Learmont devoted virtually the entirety of his submissions in the District Court to the argument that, as a matter of law, the primary Judge’s role was limited to considering whether Mr Learmont had suffered a back injury of some sort on 3 March 1990, rather than whether he had suffered a lower back injury as alleged in the statement of claim. Beyond a passing reference to Mr Learmont’s credibility and an assertion that the evidence justified a finding that Mr Learmont had suffered a back injury of some kind, counsel made no submissions as to how the primary Judge should assess the evidence or what findings his Honour should make. Nor did counsel answer the submissions advanced on behalf of the Commissioner, insofar as they addressed the medical and lay evidence.

108. For the reasons given by Ward JA, the “heretical” legal submission advanced on behalf of Mr Learmont should not be accepted.

109. The remaining submissions made on Mr Learmont’s behalf in this Court contend that the primary Judge erred in law or made jurisdictional errors. However, the complaints essentially concern the way in which his Honour dealt with and assessed the evidence. These are matters on which the primary Judge received little or no assistance from Mr Learmont’s submissions at the hearing.

110. It may have been a perfectly sensible forensic decision to conduct the District Court proceedings in this manner. But it is difficult for a party to complain on appeal of errors in the fact-finding process in the District Court, however the errors might be characterised, when no submissions were made at the hearing on the matters complained of. The conduct of a trial has a significant bearing on whether an appellant can establish that the trial Court’s approach to fact-finding involved an error of law or a jurisdictional error.

111. I agree with Ward JA that Mr Learmont has not established any of the remaining grounds on which he relies.

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Decision last updated: 22 June 2016