McAuliffe v Comcare

Case [2002] FCA 769

FEDERAL COURT OF AUSTRALIA

McAuliffe v Comcare [2002] FCA 769

WORKERS’ COMPENSATION – Commonwealth employees compensation – compensation for permanent impairment – whether impairment of shoulder and incapacity for work “resulted from” injury sustained during course of military service – application of the Safety Rehabilitation and Compensation Act 1988 (Cth) to injury occurring prior to the commencement of that Act – Tribunal determined that the respondent was not liable for ongoing workers’ compensation although determined that the respondent was liable for loss of 10 percent of efficient use of the applicant’s shoulder – whether Tribunal’s reasons for the decision are inadequate – whether there was “no evidence” to enable the Tribunal to find that a subsequent event injuring the applicant’s shoulder was a “new incident” – whether the Tribunal took into account irrelevant considerations in so far as it found that his psychological and alcohol problems were a significant cause of his impaired incapacity for work.

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2A), 43(2B), 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 24, 27, 29, 124

Brennan v Comcare (1994) 122 ALR 615 applied
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 followed
Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 cited
State of Tasmania v Robertson (2001) 10 Tas R 60 cited
Telescourt v Commonwealth (1991) 29 FCR 227 cited
Dornan v Riordan (1990) 24 FCR 564 cited
Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 cited
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 applied

BRUCE FRANCIS McAULIFFE v COMCARE
Q 80 OF 2001

DRUMMOND J
17 JUNE 2002
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 80 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

BRUCE FRANCIS McAULIFFE
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

DRUMMOND J

DATE OF ORDER:

17 JUNE 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed and the Administrative Appeals Tribunal’s decision, in so far as it affirms the decision of the delegate of the respondent that the respondent is not liable to the applicant for ongoing workers’ compensation, be set aside.

2.The case be remitted to the Administrative Appeals Tribunal, differently constituted, but only for redetermination, with or without further evidence, of the issue whether the respondent is liable to the applicant for ongoing workers’ compensation.

3.The respondent pay the applicant’s costs of and incidental to the appeal, including reserved costs if any, to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 80 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

BRUCE FRANCIS McAULIFFE
APPLICANT

AND:

COMCARE
RESPONDENT

JUDGE:

DRUMMOND J

DATE:

17 JUNE 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. This is an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the…

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AGLC
McAuliffe v Comcare [2002] FCA 769
Case
[2002] FCA 769
Decision Date

CaseChat Overview and Summary

In McAuliffe v Comcare, the court was asked to review the decision of the Administrative Appeals Tribunal (AAT) concerning a claim for ongoing workers' compensation by Mr. McAuliffe. The dispute centred on whether the Tribunal had correctly assessed the contribution of a 1994 incident to Mr. McAuliffe's shoulder impairment and whether it had properly considered other factors that could affect his capacity to work. The court was required to determine if the Tribunal had erred in law or fact, particularly regarding the nature of the 1994 fall and the relevance of psychological and alcohol-related issues in assessing Mr. McAuliffe's incapacity for work.

The primary legal issue before the court was whether the Tribunal's decision contained errors of law that warranted its annulment. Specifically, the court had to examine if the Tribunal had erred in its interpretation of the evidence regarding the 1994 fall and whether it had misapplied the principles governing the consideration of irrelevant factors in its decision-making process. The court found that the Tribunal's conclusion that the 1994 fall was a new incident contributing to Mr. McAuliffe's shoulder impairment was not supported by the evidence, thus constituting an error of law. Furthermore, the Tribunal's consideration of psychological and alcohol-related issues as relevant to Mr. McAuliffe's incapacity was not inherently flawed, but the lack of adequate explanation for their weight in the decision rendered it deficient.

The court determined that the Tribunal's second order, affirming the delegate's decision that Mr. McAuliffe was not entitled to ongoing workers' compensation, contained errors of law and must be set aside. The court held that the Tribunal had misinterpreted the evidence regarding the 1994 fall and failed to adequately explain its reasoning concerning the relevance of psychological and alcohol-related factors. Consequently, the appeal was allowed, and the Tribunal's decision was annulled. The case was remitted to the Tribunal for redetermination, with the possibility of further evidence being presented. Additionally, the respondent was ordered to pay the appellant's costs of the appeal, including any reserved costs.

Orders

Orders of the court

1. The appeal be allowed and the Administrative Appeals Tribunal’s decision, in so far as it affirms the decision of the delegate of the respondent that the respondent is not liable to the applicant for ongoing workers’ compensation, be set aside.

2. The case be remitted to the Administrative Appeals Tribunal, differently constituted, but only for redetermination, with or without further evidence, of the issue whether the respondent is liable to the applicant for ongoing workers’ compensation.

3. The respondent pay the applicant’s costs of and incidental to the appeal, including reserved costs if any, to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal’s second order in so far as it affirms the delegate’s decision that Mr McAuliffe is not entitled to any further costs of treatment for his shoulder impairment cannot stand. For the reasons given, the second order of the Tribunal, in its entirety, must be set aside.NO EVIDENCE It was said that all the relevant evidence was to the effect that the 1971 injury pre-disposed Mr McAuliffe to the consequences that emerged following the 1994 incident and that the 1971 injury therefore contributed to loss of bodily function that emerged after the 1994 fall. It was for this reason that it was said there was no evidence that the 1994 fall was a new incident. I have explained why the Tribunal’s second order, in so far as it is based on its view of the 1994 fall as a significantly “new” incident, is flawed with error of law. But if it were said that the only error of law in this conclusion is the “no evidence” defect, that attack on the Tribunal’s decision would fail. In Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601, the Full Court made it clear that error of law within s 44 the AAT Act is not established by showing that a finding of the Tribunal was against the weight of evidence and said:“An appellant who attacks [pursuant to s 44 the AAT Act] a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.” The Tribunal’s reference in par 12 of its reasons to the version of the 1994 incident given by Mr McAuliffe “in his original statement” is a reference to the following comment in Mr McAuliffe’s letter of 30 May 1995 to Comcare:“1994 Fell on rocks on way to beach shoulder ‘popped out’ did not seek any medical treatment as previously told just take ‘pain killers’” At the hearing (where Mr McAuliffe represented himself), what the Tribunal referred to in par 12 as “the version that he gave at the hearing” emerged in closing comments made by Mr Wallace (counsel for Comcare) and Mr McAuliffe himself in discussion with the Tribunal:“MR MULLER: Is that what you told Dr Thomas, you slipped on some rocks? Is that what you told Dr Thomas that you slipped on some rocks?MR McAULIFFE: I was walking into the water and I slipped on some rocks and fell into the water; yes. I didn’t fall on the rocks. There is an actual severity of trauma which details that which was submitted to the department.MR WALLACE: Well, could I just interrupt for a moment? Mr McAuliffe’s own incident report dated 30 May 1995 at T14 says:1994 fell on rocks on way to beach. Shoulder popped out. Did not seek medical treatment as previously told just to take some pain killers.So it’s Mr McAuliffe’s own written document that puts him falling on the rocks on the way to the beach, not in the water falling over.MR McAULIFFE: Mr Muller, I’d like to clarify that on a - terminology. I was walking on rocks and fell into the water and that’s contained in a document which I submitted to the department which is T394.MR MULLER: T394?MR McAULIFFE: There’s two pages to that. It’s the second page which is headed Severity of Trauma.MR WALLACE: Four years later you change your story.MR McAULIFFE: I’m not changing my story, it’s explaining. If you have a look at some of my hand-written letters you can see I don’t express myself very well in writing.”

Decision

Reasons for decision

DRUMMOND J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DRUMMOND J

It was for the Tribunal to determine, as a matter of fact, what was the nature of Mr McAuliffe’s 1994 fall and what part it played in causing his current impairment of shoulder function. Moreover, the Tribunal had the advantage of hearing from Mr McAuliffe. It was, I think, open to the Tribunal to take Mr McAuliffe’s 1995 statement as a statement that in the fall his right shoulder came into contact with rocks, ie, that his shoulder then suffered a severe impact that did not merely aggravate the consequences of the 1971 injury. At most, the Tribunal’s finding as to the nature and thus the severity of the 1994 fall could be an error of fact not the subject of correction by this Court. The “no evidence” attack must fail.IRRELEVANT CONSIDERATIONS The proposition advanced by Mr McAuliffe that the Tribunal, in finding that a significant cause of Mr McAuliffe’s current incapacity for work was his psychological and alcohol-related problems, took into account those problems when they were truly irrelevant considerations to the decision it had to make is, on its face, surprising. There was expert opinion to the effect that, in addition to the problems with his shoulder, there were other factors preventing him from returning to work as at April 1999, including numerous psychological barriers and his fairly high level of alcohol and drug use. It is not to the point that the Tribunal can be criticised for acting on this evidence when there was other evidence, even a considerable body of other evidence, suggesting that those problems should not be seen as significant causes of Mr McAuliffe’s failure to engage in employment after the 1994 fall. The Tribunal was entitled, as it did, to take these considerations into account in reaching its ultimate decision. That is not to say the Tribunal’s decision is not still flawed because other errors of law were made. Counsel for Mr McAuliffe submitted that the deficiency in the Tribunal’s reasoning here relied on is closely bound up with its failure to give proper reasons for its decision. What exposes the Tribunal’s second order to challenge is not that it unjustifiably took these two considerations into account in reaching the decision embodied in that order, but that it failed to explain why it thought those considerations had the probative force the Tribunal gave to them, when such explanation was necessary.