Murphy, T.J. v Australian Postal Corporation
[1995] FCA 503
•14 JULY 1995
CATCHWORDS
ADMINISTRATIVE LAW - Appeal from a decision of the Administrative Appeals Tribunal - Termination of compensation for injury at work while employed by Australia Post - Whether the applicant was afforded procedural fairness - Whether the reasons given by the Tribunal for its decision were adequate.
Administrative Appeals Tribunal Act ss 33(1)(c), 43 and 44
Marelic v Comcare (1993) 121 ALR 114
NRMA Insurance Ltd v Tatt (1989) 92 ALR 299
Saliba v Comcare, unreported, 18 November 1995, Einfeld J
TREVOR JAMES MURPHY v AUSTRALIAN POSTAL CORPORATION
No. ACT G 23 of 1994
Finn J.
14 July 1995
Canberra
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 23 of 1994 DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: TREVOR JAMES MURPHY
Applicant
AND: AUSTRALIAN POSTAL CORPORATION
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER : Finn J.
DATE OF ORDER : 14 July 1995
WHERE MADE : Canberra
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
The decision of the Tribunal be affirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 23 of 1994 DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: TREVOR JAMES MURPHY
Applicant
AND: AUSTRALIAN POSTAL CORPORATION
Respondent
CORAM: Finn J.
DATE: 14 July 1995
REASONS FOR JUDGMENT
This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) dated 11 March 1994 affirming a decision of Australia Post (the respondent) made on 7 January 1993. The latter decision in turn confirmed a determination of 11 May 1992 made under the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) that the respondent was no longer liable to pay compensation to Trevor James Murphy (the applicant) in respect of his development of peri-arthritis (capsulitis) of the right shoulder, that condition being found not to be referable to the applicant's employment with the respondent.
The substantive issue in all three decisions, though not the issue before this Court, was the cause of the applicant's condition. He related it to an injury to his right shoulder said to have been sustained at work at the Canberra Mail Centre on 28 February 1983 when lifting a heavy parcel on to a conveyor belt with his right hand. The alternative explanation adopted in all three of the above decisions was that the condition was unrelated to the injury of that date but resulted from long term diabetes from which the applicant has suffered. A large number of medical reports from a variety of medical practitioners of varying specialisations and covering almost a decade of examinations lent support, variously, to each point of view. These reports date in the main from after 28 January 1987, the date on which the applicant was retired from his position with the respondent on the basis that he was totally and permanently incapacitated for work.
The scheme of the Administrative Appeals Tribunal Act 1975 (Cth) entrusts to the Tribunal and the Tribunal alone the task of finding for itself the facts relevant to its determination: Copperart Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1993) 30 ALD 377. The findings made may produce an understandable sense of dissatisfaction in an applicant where the Tribunal reaches a conclusion adverse to that party's interests where there is a conflict of evidence in the matter: Saliba v Comcare (unreported decision dated 18 November 1994 of Einfeld J. of this Court). But save where there is no material before the Tribunal upon which the conclusion could properly be based, this Court has no power to intervene simply because it may have arrived at a different conclusion or have given different weight to relevant factors: Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407, at 410-411. An appeal to this Court is limited to an appeal on a question of law: Administrative Appeals Tribunal Act, 1975 s.44(1) (Cth). I note these matters at the outset because, as I will later indicate, the applicant has not, in my opinion, crossed the threshold required by s.44(1).
The Points of Law Raised by the Applicant
Though the Amended Notice of Appeal raised three points of law for consideration, only one was pressed at the hearing. This was that -
"The Tribunal failed to express findings and reasons for its decision which are adequate for the purpose of enabling a proper understanding of the basis upon which the decision was reached."
During the course of the hearing and in consequence of the argument advanced by counsel for the applicant, the Court allowed a further amendment to the Amended Notice of Appeal to incorporate the new ground that -
"The Tribunal in its several inquiries of witnesses including medical witnesses, the applicant and the applicant's brother, denied the applicant procedural fairness in that it failed to indicate to the applicant or at all the inferences it was minded to make as the result of the questions it put and the answers given."
To understand how these questions could be said to arise in this case it is necessary to give a brief background account both of the course of the Tribunal's hearing and of the issues that were raised before it.
It should, however, be noted before doing this that while the two remaining points of law raised in the Amended Notice of Appeal were not formally abandoned, neither were they addressed. Here I would merely note that acceptance of the first of those two points - that the decision was manifestly unreasonable - would require a finding by this Court that some number of the medical reports relied on by the Tribunal were themselves manifestly unreasonable. On the state of the evidence before me, that is not a conclusion I could properly arrive at notwithstanding the division in medical opinion contained in the various reports.
The second, unaddressed point of law mentioned in the Amended Notice of Appeal - that the Tribunal failed to take into account material considerations and took into account immaterial ones - is not, in my view, born out in a
fair analysis of the Tribunal's decision. Rather, such of the grounds mentioned in the Amended Notice which seem to be related to this point (counsel did not seek to relate any particular grounds to this point of law) reflect, in my opinion, dissatisfaction with the findings made by the Tribunal on issues where there were conflicts of evidence.
The Tribunal Hearing and the Issues before the Tribunal
The applicant's claim, as I have noted, was that his shoulder condition had its genesis in - was "triggered by" - the injury he sustained at work on 28 February 1983. At the Tribunal hearing it was accepted that the applicant suffered such a condition. There was, though, disagreement as to its cause (the work injury or diabetes) and as to the level of incapacity it imposed on the applicant. That disagreement is strongly evidenced in the medical reports. For reasons I will note below the question of level of incapacity assumed real prominence in the Tribunal's determination. Also, and apparently for the first time, the respondent at the hearing was unprepared simply to admit the applicant's account of the event at work of 28 February.
The applicant and his advisers at the hearing could not but have been aware that the three matters I have noted - the cause of the shoulder condition, the level of incapacity it imposed, and the events of 28 February, 1983 - were in question between the applicant and the respondent. The evidence before the Tribunal on all three issues was conflicting or else inconsistent and in ways which, as I will indicate, made the credibility of the applicant a matter of central importance.
As to the event of 28 February (which was without witnesses), inconsistent descriptions were given by the applicant at least in the detail of it. On one version it involved lifting a parcel from a bench; on another, from the floor. The applicant said he experienced sharp pain in the right shoulder and wrist as the parcel was lifted. That pain lasted about three quarters of an hour and was of such severity as to bring tears to his eyes. He stated in evidence that he has never been free from pain from 28 February 1983. An accident report was filed on that date at the suggestion of a person with whom he was working.
On the evening of the same day he consulted his general practitioner, Dr Wilson. That doctor's records of the consultation contain no mention either of the injury or of the pain it occasioned. The first recorded reference in the doctor's notes to upper arm pain and restriction of movement in the shoulder occurred on 28 June and these were attributed by the applicant to a cause other than a work injury. Reference to shoulder pain as such is first recorded at the next consultation with Dr Wilson on 1 August 1983. A claim for workers compensation was made on 9 August 1983.
In September 1983 the applicant underwent short term hospitalisation for treatment "to settle his blood sugars which were the reason for rheumatic symptoms in and around the right shoulder": report of Dr Cassar, Consultant Physician, 17 Oct. 1983 (Exhibit 5). Despite the treatment being to the right shoulder no mention apparently was made to Dr Cassar of the work injury and of the pain it occasioned.
In the many medical examinations undergone by the applicant particularly after his retirement in 1987, quite divergent opinions were arrived at by the specialists concerned both as to the relationship (if any) of the injury of 28 February to the applicant's enduring condition, and as to the degree of incapacity experienced by the applicant. It was the view of the Tribunal and it was central to the respondent's submissions in this Court, that those medical opinions were to be tested by reference to the histories presented by the applicant to the respective specialists as to his incapacity. It was here in particular that his credibility was put in issue.
The applicant presently is a licensed trainer of racehorses and was at the time of the hearing engaged in training two horses. At the hearing he gave evidence of the nature of this activity and the physical exertion it involved. In contrast, the examining specialists seem not to have been informed at all of this activity. Two of the doctors who gave evidence to the Tribunal were previously provided with accounts of his capabilities which were significantly at variance with what this activity entailed.
The various medical examinations of the applicant revealed wide variation in the limitations of movement in the applicant's right arm and shoulder. In evidence, as the Tribunal noted, Dr Olsen, a consultant Occupational Physician, who undertook a review of the medical reports (Exhibit 3), suggested that the variations revealed were "too much" to be accounted for by examinations by different examiners on different dates. A contrasting view was put by Dr White, a neurologist, in his evidence before the Tribunal.
Within the medical reports there was a divergence of opinion on the issue of causation which ranged from the view that the injury of 28 February triggered or was responsible for the applicant's condition to the view that that injury was unrelated to the applicant's condition and that that injury's effect was transient and spent.
Against this background I now turn to the two points of law raised in this appeal. For convenience in exposition I will refer first to the alleged lack of procedural fairness.
Procedural Fairness
The precise terms of this ground have been set out earlier in these reasons. The ground relates to the questioning of witnesses by two Tribunal members, Dr Travers (who, I am informed by counsel, is a qualified medical practitioner) and Mr Attwood. Those witnesses included, in Mr Attwood's case, the applicant. The lack of procedural fairness alleged was that the Tribunal failed to indicate to the applicant or to witnesses, the inferences it was minded to make as a result of the questions it put and the answers they gave.
It is the case that the Tribunal is bound to observe the rules of procedural fairness and to that end it should be guided where relevant by the rule in Browne v Dunn (1893) 6 R 67: see e.g. Dolan v Australian and Overseas Telecommunications Corporation (1993) 31 ALD 510. It equally is the case that the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit: Administrative Appeals Tribunal Act, 1975 s.33(i)(c). One method of informing itself can entail undertaking examination of a witness. Where this occurs issues of procedural fairness can arise.
Put broadly the submission of counsel for the applicant was that the two named Tribunal members "stepped out of the adjudicative function and into the ring". It was argued that by so doing they became obliged to alert the witnesses they were questioning to the issue towards which their questioning was directed.
Specifically in the case of Dr Travers, though I was not taken to any portion of the transcript where the proposed obligation could be said to have arisen, it was argued that, when questioning the medical practitioner witnesses, Dr Travers should have put in issue the medical history of the applicant and should have suggested to the witnesses that they should have discerned that the applicant was a malingerer.
In relation to Mr Attwood it is the case that he questioned the applicant at length about his horse training activity and about the types of physical action that activity entailed. But as counsel for the respondent noted in her submission to this Court on this matter, he prefaced his interrogation of the applicant (which filled eight pages of transcript evidence) with the observation:
"Mr Murphy, I'd like to fill out the picture of your horse training activities because it is important to know what you've been doing in the last 18 months and what your capabilities are, particularly in relation to your upper limbs."
There clearly can be circumstances in which procedural fairness would require the Tribunal to put a witness on notice as to the inferences it could draw from questions asked, especially where the burden of the questions is not self evident. In support of this proposition counsel for the applicant sought aid, by analogy, from the decision of Beazley J in Marelic v Comcare (1993) 121 ALR 114 where procedural unfairness was found in the Tribunal's reliance in its reasons for decision on its own observations of an applicant without adverting during the course of the proceedings to those observations, or to the use to which it proposed to put them. The present case, however, is not one in which the Tribunal members can be faulted on the manner of their questioning of the applicant and of the medical witnesses and of their use of the answers given. With the medical history, the applicant's capabilities and more broadly his credibility being all clearly in question, there could be no issue of prejudice or surprise in the use made by the Tribunal members of the answers given to their questions: cf Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 236 per Mahoney JA. From the time of the initial determination of 11 May 1992 terminating payment of compensation, it should have been obvious both to the applicant and then his advisers that his capability and his credibility were in issue. The ensuing body of medical evidence that built up from that date could only have reinforced that awareness. With Mr Attwood in particular expressly indicating the issue to which his questioning was addressed, and with that issue being one manifestly in contention, I cannot find any possible unfairness to the applicant in the manner in which he was questioned. I would add that the relevance and purpose of Mr Attwood's questioning, given the matter in contention, should have been patently obvious to the applicant and his advisers at the time.
The applicant has not, in my opinion, made out this ground of appeal.
The Adequacy of the Reasons for Decision
The Tribunal's reasons for decision barely exceed six pages. They are neither remarkable for their clarity nor, given the conflicts of and inconsistencies in evidence, at all expansive. Notwithstanding these inadequacies they are sufficient in the findings made and in the reasons given to enable the applicant to know the reasoning process that guided the Tribunal to its ultimate decision: cf Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
The Administrative Appeals Tribunal Act, 1975, s.43 obliges the Tribunal to give reasons for its decisions which reasons "shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based": s.43(2B). A substantial failure to comply with this obligation will constitute an error of law for the purposes of a s.44 appeal: see Dornan v Riordan (1990) 24 FCR 564 and for a discussion of this ground of error, P. Bayne, "The Inadequacy of Reasons as an Error of Law" (1992) 66 ALJ 302.
In approaching this ground of appeal in particular, it is appropriate to note that the proper stance for this Court to adopt, as has been said on many occasions, is one of balance and restraint: see e.g. Politis v Federal
Commissioner of Taxation (1988) 16 ALD 707. And while the Court is necessarily concerned to ensure that a decision cannot properly be characterised as arbitrary because of ambiguity, incoherence or omission in its reasons, it will not reach such a conclusion where all that is complained of can properly be regarded as infelicities in expression or presentation, brevity of reasons, or apparent inconsistencies between parts of the reasons which can be resolved on a consideration of the reasons in their entirety.
The penultimate and ultimate paragraphs of the reasons for decision express the Tribunal's view of the question before it and its resolution of it:
"23.In his report of 17 March 1993 (Exhibit H) to the Applicant's solicitors, Dr John Corry, Consultant in Rehabilitation Medicine, stated inter alia:
'Whether the injury therefore was a significant factor in the development of peri-arthritis is a matter of history. He tells me that he had continuing disability, although able to continue in his job with care. If that is the case, then I believe the injury at work was a significant contributing factor to the development of peri-arthritis in his shoulder in a situation of susceptibility due to the presence of longterm diabetes. If in fact that history is incorrect, and he had made a full and complete recovery and was asymptomatic, then in all likelihood the onset of peri-arthritis (capsulitis) of the shoulder was a direct reflection of underlying diabetes.'
24.Taking the view we do of the Applicant's credibility, we accept the above opinion and with it the opinions of those medical practitioners who consider that the Applicant's shoulder condition arises as a result of his diabetes and is not referable to his employment. The decision under review is therefore affirmed."
As I noted earlier the Tribunal's reasons are parsimonious in plotting their path to this conclusion. The structure of their reasons is as follows:
(a)paras 1 and 2 describe the sequence of decisions leading to the hearing of the review by the Tribunal;
(b)paras 3 and 4 describe the events of 28 February 1983 and the pain suffered at the time;
(c)paras 5 and 6 contrast the pain the applicant said he suffered from 28 February onwards with his failure to mention the injury to his general practitioner until August 1983;
(d)paras 7 to 12 narrate the consultations he had with his general practitioner including that on the night of 28 February;
(e)para 13 notes his receipt of workers compensation and his retirement on grounds of incapacity in 1987;
(f)para 14, notes without any particularisation the variations in opinions of the numerous specialists who have examined the applicant and "finds that their opinions as to the degree of incapacity presently experienced by the applicant must be tested against what the applicant stated to them he was capable of doing";
(g)para 15 notes the applicant's horse training activities, refers to his being questioned by the Tribunal thereon, and contains the finding that "he has continuously down-played the activities necessarily undertaken by him and has not been totally frank with examining medical practitioners as to the range of activities he is capable of performing";
(h)paras 16 and 17 exemplify the down-playing and lack of frankness referred to in para 15 by reference to his disclosures to Drs White and Olsen;
(i)para 18 mentions Dr Olsen's review of the various medical reports, his view in evidence that the variety of limitations of movement of the applicant's right arm are not consistent and that their range cannot be explained by different examiners or different dates;
(j)para 19 simply notes the "variations in the applicant's description as to how the alleged injury occurred";
(k)para 20 notes the "inexplicable fact" of the applicant not mentioning the alleged injury to his general practitioner on the day of its occurrence and his first mention of it some six months later notwithstanding intervening consultations.
"These factors, combined with the reluctance to fully reveal the extent of his activities to examining medical practitioners, result in the Tribunal not accepting the Applicant's evidence as to the cause and nature of any shoulder condition nor as to his current level of incapacity."
(l)para 21 uses the report of Dr Cassar relating to the applicant's treatment to settle his blood sugars around his shoulder in September 1983 to confirm the opinion quoted immediately above.
Having so rejected the applicant's evidence - and this seems to be what is signified in their reference to the applicant's credibility - the Tribunal, in paras 23 and 24 as noted above, considers the "history" to be one which leads to the conclusion that the applicant's shoulder condition is referable to his diabetes not his employment.
The applicant's attack on this has three related components: (1) that the finding in para 24 as to diabetes being the cause of the applicant's condition requires justification in the reasons and this is lacking; (2) that, in the absence of cross-examination of the applicant's doctors, in view of the conclusion of the respondent's medical witness Dr Olsen that the cause was not diabetes, and without a proper review of the evidence, there was no basis for the finding; and (3) that in rejecting the applicant's evidence the
Tribunal merely substituted its own lay opinion based on credibility post incident for an issue as to prior causation which, absent evidence of invention by the applicant, must be one for expert determination. In support of these criticisms reference was made to the judgment of Samuels JA in NRMA Insurance Ltd v Tatt (1989) 92 ALR 299 at 311-313 especially in aid of the view that, given the issue to be decided, findings based on credibility alone would be inadequate to justify the conclusion reached.
Counsel for the respondent's written submissions in response to the Amended Notice of Appeal and her amplification of these in argument in response to the applicant's submissions can be summarised as follows. It was for the Tribunal both to find and to assign weight to the facts relevant to its decision and the applicant's complaint was substantially with this unreviewable part of its function. As to the manner in which the Tribunal treated the medical evidence in its reasons, the respondent submitted that the credibility of the applicant was crucial not simply for the purpose of demonstrating the weight to be given the applicant's evidence as such, but also and more importantly for the purposes of evaluating the expert evidence of the doctors. To the extent that that evidence relied upon the history provided to the doctors by the applicant, it was not necessarily substantiated by the facts and in some instances there was a substantial discrepancy between the two. The respondent's choice not to cross-examine medical witnesses was justified on the basis noted in NRMA Insurance Ltd v Tatt (1989) 92 ALR 299 at 308-309 that:
"where there is a conflict between experts it is often unproductive to attempt to tackle the opposing expert head on by seeking to argue him out of his opinion by weight of technical metal. It is very often much easier to remove one of the props upon which his opinion was based".
The respondents relied on credibility and history for this purpose. As to the Tribunal's alleged failure to set out the varying views of the experts, the respondent submitted that it was open to the Tribunal to note the variation (para 14), the importance to be attributed to history (paras 14 and 23), and to accept and to reject expert evidence in a global way.
Clearly the tribunal in its reasons could have spoken with greater precision and clarity than it did. The Tribunal has not, for example, openly and unequivocally stated whether it finds that the injury of 28 February 1983 was in fact sustained. An emphasis on different paragraphs in the reasons may suggest differing inclinations in the Tribunal on this matter: compare paras 19 and 23 although the language in the former on causation is ambiguous. But as counsel for the respondent submitted, correctly in my opinion, as the Tribunal was of the view that the injury was not causally related to the applicant's condition it was not necessary to find positively that it did not happen.
The Tribunal's treatment of the expert evidence could well have been more explicit and extensive than it was. It in effect invites one to conclude more by a process of piecing parts of the reasons together than by direct holding that as the applicant is to be disbelieved as to the significance and effect of the alleged injury, the opinions of medical experts which attributed a causal effect to that injury were in consequence to be rejected in favour of those which located the cause of the applicant's condition solely in his diabetes. I am prepared to hold that the reasons given by the Tribunal are sufficient to indicate the path that led it to this conclusion and hence to the choice it made on the medical opinions in para 24 of its reasons for decision. In so doing I accept the submission of the respondent that, with the conflict of expert evidence displayed here, it was appropriate to rely upon an approach which "removed a prop upon which [one body of] opinion is based", rather than to have required that that conflict be the subject of confrontation in cross-examination and of extended juxta position in the Tribunal's reasons. Though it would, in my view, have been preferable for the Tribunal to have been more detailed and generous in its discussion and analysis of the expert evidence, I cannot conclude that its reasoning in this regard is so parsimonious as to prevent the ascertainment of the reasoning upon which the decision is based: see Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18; Bennett and Bennett (1991) FLC 78,251 at 78,266-78,267.
Accordingly I reject the submission of the applicant that the para 24 conclusion of the Tribunal lacks justification in the reasons. Equally, I am of the view that the Tribunal's determination on credibility properly could be used as a basis for differentiating between expert witnesses. Unlike in NRMA Insurances Ltd v Tatt (1989) 92 ALR 299 the Tribunal has made the required findings on material issues, albeit it has used findings on credibility as an instrument in that process.
The one outstanding matter in the applicant's submission to which reference should be made is the criticism that the Tribunal has treated Dr Olsen's evidence inconsistently by relying upon his evidence of the review of the medical reports to question the applicant's credibility while rejecting Dr Olsen's diagnosis of the applicant's condition in its ultimate finding. Dr Olsen, seemingly alone, attributes the condition not to diabetes but to osteoarthritis: see Appeal Book, folio 211 para 9. While it would in my view have been preferable for the Tribunal as the fact finding body to make explicit both the fact of, and the reason for, its selective acceptance of Dr Olsen's evidence, it is not as a fact finding body required to accept all of a particular witness's evidence in order to accept some: Saliba v Comcare (supra).
In the result, I am unprepared to find that the reasons for decision given by the Tribunal are impeachable on grounds of inadequacy in its reasons and findings.
The applicant having failed to demonstrate that a point of law arises for determination in consequence of the decision of the Tribunal, the appeal is dismissed with costs and the decision of the Tribunal is affirmed.
I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 14 July 1995
Counsel for the applicant : Mr H Selby
Solicitors for the applicant : Gary Robb & Associates
Counsel for the respondent : Ms C.E. Adamson
Solicitor for the respondent : Australian Government
Solicitor
Date of hearing : 5 July 1995
Date of judgment : 14 July 1995
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