Pedrana, L.M. v Commissioner for the Safety, Rehabilitation & Compensation of Commonwealth Employees

[1991] FCA 142

JUDGMENT No. .!4?? f k t

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA )

1

VICTORIA DISTRICT REGISTRY	1	NO. VG 276 of 1990
1
GENERAL DIVISION	1

ON APPEAL from the General Administrative Division of the

Administrative Appeals Tribunal constituted by

Mr. J. Handley (Senior Member)

B E T W E E N :

LEANNE M. PEDRANA

Applicant

A N D :

THE COMMISSIONER FOR T H E S A F E T Y , REHABILITATION AND COMPENSATION OF COMMONWEALTH EMPLOYEES

Respondent

JUDGE MAKING ORDER:	KEELY J.
PLACE ORDER MADE:	MELBOURNE

28 MAR 1991

DATE ORDER MADE:  26 MARCH, 1991 FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

MINUTES OF ORDER REGISTRY

without the hearing of further evidence, as the Tribunal Tribunal to be heard and decided again, either with or

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2 .    The decision of the Administrative Appeals Tribunal made on 2 4 August 1990 be set aside.

3.   The matter be remitted to the Administrative Appeals

2 / .

in the exercise of its discretion may decide.

4 .    The respondent pay the applicant's costs of the appeal.

(Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.)

GENERAL DISTRIBUTION NOT REOUIRED

IN THE FEDERAL COURT OF AUSTmIA )

1

VICTORIA DISTRICT REGISTRY	1	NO. VG 276 of 1990
1
GENEm DIVISION	1

ON APPEAL from the General Administrative Division of the

Administrative Appeals Tribunal

constituted by a Senior Member

B E T W E E N :

LEANNE M. PEDRANA

Applicant

A N D :

Respondent

26 MARCH, 1991 KEELY J .

REASONS FOR JUDGMENT

This is an appeal from a decision of the General

Administrative Division of the Administrative Appeals Tribunal

( "the Tribunal"), constituted by a Senior Member, given on 24

August 1990, which affirmed a determination, made on 19 May

1989, of an Independent Reviewing Officer for the respondent.

As the Tribunal expressed it:

"The effect therefore of this application is to seek payment of compensation from 21 October 1988 until April 1990 for total incapacity and thereafter payments for partial incapacity."

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The first basis on which the applicant's case was put to the Tribunal was that on 15 August 1988 "... she suffered injury to her right knee and/or the aggravation of a pre- existing right knee injury when she collided with, or was struck by another work mate during morning tea recess. " That claim was rejected by the Tribunal. The learned Senior Member stated "I am not satisfied that the Applicant collided with Kotrakis. The Applicant I thought was a poor and unreliable witness ..." (appeal book 289.5). The appeal to this court is not from the decision in so far as it rejected the applicant's claim advanced on that basis but that does not mean that the Tribunal's view of the applicant's credibility is irrelevant.

The alternative basis upon which the claim was put to the Tribunal (appeal book 24) was

" . . . that if you are not satisfied that the alleged

incident of 15 August 1988 occurred, nevertheless, at or around that date there was a recurrence of symptoms, a deterioration in the applicant's condition, as a result of which she was

incapacity were the incidents of May 84 and February incapacitated and contributing factors to that 86."

that was the basis and it was common ground at the hearing before the court. It may be added that, before the hearing in the Tribunal, the respondent had filed a statement of its contentions which included the statement (appeal book 09-010) that:

"... the Respondent contends that any condition from

which the Applicant is currently suffering is not

related to any previous incident in her employment

nor to her employment generally."

An appeal to this court from the Tribunal lies only on a question of law. I ~

As Brennan J. said in Waterford v The	1 ,
I

Commonwealth (1987) 163 CLR 54 at 77 in an oft-cited passage:-	l
L

"A finding by the A.A.T. on a matter of fact cannot	I
be reviewed on appeal unless the finding is vitiated	k
by an error of law. Section 44 of the A.A.T. Act	!
confers on a party to a proceeding before the A.A.T.
a right of appeal to the Federal Court of Australia	1
"from any decision of the Tribunal in that
proceeding" but only "on a question of law". The	I
error of law which an appellant must rely on to	i
succeed must arise on the facts as the A.A.T. has	!
found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required-to make. There is no error of law simply in making a wrong finding of
fact.	"

The grounds of the appeal to this court included the

following:

"(c) that the Tribunal erred in law by failing to make, and include in its reasons, findings on a material question of fact, namely whether the compensable injuries suffered in 1984 and 1986

were factors contributing to the Applicant's

incapacity in the relevant period."

It is convenient to set out the whole of the Tribunal's reasons for decision relating to the "alternative basis upon which that claim was put" (i.e. the matter the subject of this appeal). The numbers [l], [Z] , [3] and [4] have been inserted by me immediately before those four paragraphs of the Tribunal's reasons to enable those paragraphs to be more easily identified later in these reasons for judgment. The

Tribunal's reasons were (appeal book 290):-

[l]	"On 17 June 1988 Mr Deacon found that she was, "at peace with the world" (p. 110) such was the improvement in her right knee (from the previous injuries) and her ability to perform full-time work. He said "she was doing well" (p. 110). He thought it was "possible but unlikely" that the knee injury manifesting after 15 August could have occurred in the absence of any injury or incident at or about that time (p. 110).
[2]	Having regard to the evidence of Mr. Deacon, I am not satisfied that there was a reoccurrence [sic] of right knee injury at or about 15 August 1988 which was related to the two prior compensable injuries of 1984 and 1986.
[3]	I am not able to say why the Applicant's right knee apparently deteriorated at or about or in August 1988 but, having decided that it was not injured or aggravated by the employment, I am no longer empowered to make such an enquiry into the cause of the subsequent incapacity.

[4] The decision under review should therefore be

affirmed. "

In my opinion paragraph [2] was a finding that the
applicant had failed to satisfy the Tribunal "that there was a

reoccurrence [sic] of right knee injury at or about 15 August

of 1984 and 1986". That finding must be read in the light of	1988 which was related to the two prior compensable injuries
paragraph [3] above and of two other findings that the Tribunal made, which were in the following terms:-

"I am satisfied that on or about 15 August 1988 the Applicant did suffer an injury or the aggravation of a right knee injury which precipitated surgery and incapacity.

I am not satisfied that such injury or aggravation

arose out of, or in the course of the Applicant's
employment with the respondent." (appeal book 289)
In my opinion the meaning of those two findings and of

paragraphs [2] and [3], taken together, is that the Tribunal
decided that:-

(i) "on or about 15 August 1988 the Applicant did suffer an injury or the aggravation of a right knee injury which precipitated surgery and incapacity" (second last paragraph - appeal book 289)

(ii) it was not satisfied that that "injury or aggravation [on or about 15 August 19881 arose out of, or in the course of the Applicant's employment with the respondent" (last paragraph - appeal book 289)

(iii) "the Applicant's right knee apparently deteriorated ...

about August 1988 but ... was not injured or aggravated by the

employment" i.e. by any injury or aggravation which occurred

in compensable circumstances in or about August 1988 !

(paragraph [3] above - see appeal book 290) 1

(iv) because of its decision in paragraph [3] above, the	i
!
Tribunal considered that it was "no longer empowered to make
:
such an enquiry into the cause of the subsequent incapacity"
i.e. the incapacity following the deterioration "... about ...	1

August	1988".	1'
I
I. I

In Commonwealth of Australia v (KC) Smith (1989) 18 ALD	i'
!

224 at 226, von Doussa J. said:-	E
!:

"However, it is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury: Harwood v Wvken Colliery Co. [l9131 2KB 158 at 169 and Salisburv v Australian Iron & Steel Ltd. (1943) 44 SR(NSW) 157 at 162. It is sufficient if the injury contributes in a material sense to the incapacity: Federal Broom Co. Ptv. Ltd. v Semlitch, supra, per Taylor J.

at 635; v Gabell, supra, per Bray CJ at 48, 50. If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense: see Bratovich v Rheem (Aust.) Ptv. Ltd. (1971) 2 SASR 33 per Bray CJ at 43. The critical consideration is that a single condition arises causing incapacity even though the condition may have independent causes. Such a case is to be distinguished from one where independent causes produce independent consequences, distinct bodily conditions which amount to total incapacity only because they must be - -

added together : see Ward v ~orrimal-ialaownie
Collieries Ltd., supra, especially per Dixon J., as
he then was, at 141. See also Morris v Georqe

[l9771 2 NSWLR 552, especially per Glass JA at 580,

and on appeal to the Privy Council,	v orris
[l9801 1 NSWLR 81."

In my opinion the Tribunal erred in law in deciding that

it was "no longer empowered to make such an enquiry into the

cause of the subsequent incapacity" (appeal book 290 - second

last paragraph). It was required, as a matter of law, to make

a finding "on a material question of fact, namely whether the compensable injuries suffered in 1984 and 1986 were factors contributing to the Applicant's incapacity in the relevant period" - see ground of appeal (c). That ground of appeal must be upheld.

In those circumstances it is not necessary to express an opinion as to ground (d) which was in the following terms:-

" ( d ) t h a t t h e Tribunal erred i n law i n t h a t it

decided the Applicant's incapacity i n the

re levant period bore no re la t ionsh ip t o the 1984 and 1986 incidents having no evidence before it on which a reasonable Tribunal could so decide."

I n my opinion the Tribunal did not so decide i.e. it did not decide t h a t " the Applicant's incapacity i n the relevant period

bore no re la t ionsh ip t o the 1984 and 1986 incidents . . .". I t

should be added t h a t t he applicant d id not contend t h a t it had so decided; ground (d) of the applicant 's appeal was only advanced as an a l te rna t ive - see paragraph 9 of the typewritten "summary of arguments on behalf of t he applicant"

handed t o t h i s cour t by M r . Roche, of counsel.

I f , contrary t o my opinion, t he Tribunal d id f ind t h a t

t he "incapacity . . . bore no re la t ionship t o t h e 1984 and 1986

incidents", then i n my opinion there was no evidence t o support t h a t f inding. The Tribunal appeared t o place great

re l iance upon t h e evidence of Mr. Deacon, recorded a t

t r ansc r ip t p. 110 (appeal book l o g ) , t h a t on 17 June 1988 he

had noted t h a t t he applicant was	"a t peace with t h e world" and
t h a t "she was doing w e l l " - see paragraph l	above,	quoting

the Tribunal 's reasons (appeal book 290). However, Mr. Deacon

i n the next few l i n e s of h i s o ra l evidence, speaking of the

f i v e months before 17 June 1988, s a id t h a t "we w e r e working through physio and braces and supports t o try and improve the s i tua t ion and we seemed t o be get t ing away with it". That evidence was supported by h i s report dated 1 September 1988

which s a i d "we have ba t t led on with t h e McConnell type

I;

8/.	>
I

exercise programme and got her back to work but on rather a	I
I
,.

knife edge, . . . " (appeal book 210) . Further, in his report I

dated 19 April 1990 (appeal book 262), Mr. Deacon, speaking of	I .
his review of her condition on 17 June 1988, said "at which stage she was making slow but steady progress and was back to work". In my opinion neither the words "at peace with the world", nor Mr. Deacon's evidence as a whole, could be taken as meaning that Mr. Deacon was expressing the opinion that on 17 June 1988 the applicant had fully recovered from the 1984 and 1986 injuries or that neither of those injuries was contributing to her incapacity in August 1988.
There was no evidence from any other medical practitioner upon which the Tribunal could find that the incidents in 1984	I II
i
and 1986 did not contribute to the incapacity which commenced
in August 1988. It may be added that there was evidence to
the contrary from a specialist medical practitioner called by	. .
the respondent, Mr. Dooley (appeal book 120 and 121)	. In his

i l

oral evidence (appeal book 119) he adopted the contents of his I F

report to the Australian Government Solicitor, dated 19	!	'
I

February 1990 (appeal book 280-1).	He had been asked to	12
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answer a number of questions, which included the following:

5

"5. In your opinion if it were accepted that the alleged incident on 15 August did not take place is there any relationship between the employee's present condition and the injuries she suffered in 1984 and 19861"

His answer to that question was in the following terms:-

L..

"5) As previously stated I consider that the	i
condition of her right knee relates to the original	t --
injuries of 1984 and 1986 and incomplete
rehabilitation after two lots of surgery."	I_; j
1.-
: 2

Grounds (a) and (b) of the appeal were closely related to ground (c) and do not require separate consideration. :. .
I

The I !

appeal must be allowed, the decision of the Tribunal, given on 24 ~ugust 1990, must be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again, either with or without the hearing of further evidence, as the Tribunal in the exercise of its discretion may decide. The respondent must pay the applicant's costs.

I certify that this and the eight

preceding pages are a true copy herein of the Reasons for Judgment of his Honour Mr Justice Keely delivered on 26 March, 1990

Associate:	l- A/\ Ck2Aw&
Date : 26 March, 1990.	4-

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Date of hearing	21 March, 1991
Date of Judgment	26 March, 1991
Solicitors for Applicant	Ryan Carlisle Thomas
Counsel for Applicant	Mr. Roche
Solicitors for Respondent	Australian Government Solicitor
Counsel for Respondent	Mr. P. Misso