FEDERAL COURT OF AUSTRALIA
Prosegur Australia Pty Ltd v Higgerson [2024] FCA 203
Appeal from: Higgerson and Prosegur Australia Pty Ltd (Compensation) [2023] AATA 115 File number: NSD 171 of 2023 Judgment of: KATZMANN J Date of judgment: 8 March 2024 Catchwords: WORKERS COMPENSATION – employee of “licensed corporation” within the meaning of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (SRC Act) –where employee had long-standing problems with his left knee attributed to osteoarthritis after injuring the knee more than 17 years earlier in previous employment – where employee hyperextended the knee in an incident in October 2019 in the course of his employment with the licensed corporation – where liability for compensation for recent incident or injury due to the nature and conditions of the employee’s employment was declined and decision affirmed on reconsideration – where employee applied for review by Administrative Appeals Tribunal – where Tribunal found that the employee suffered from an ailment, namely osteoarthritis, that he suffered from that ailment at the time of the October 2019 incident, that his employment with the licensed corporation did not make a significant contribution to the osteoarthritis and that the osteoarthritis was not a disease for the purposes of s 5B(1) of the SRC Act, whether Tribunal erred in law in finding that s 5A(1)(c) was satisfied in that the 2019 incident aggravated the 2002 injury (the impugned finding) – whether the Tribunal misconstrued 5A(1)(c) of the SRC Act by failing to determine what injury the employee sustained in 2002 whether Tribunal failed to give adequate reasons – whether there was no evidence to support the impugned finding or its finding was legally unreasonable – whether the Tribunal denied the licensed corporation procedural fairness by failing to notify it of its intention to make the impugned finding or give it a reasonable opportunity to be heard before doing so – whether Tribunal failed to consider various submissions Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), ss 43(2B), 44(1)
Safety, Rehabilitation and Compensation Act 1998 (Cth) ss 4(1), 5, 14, 16
Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook, 2022)
Cases cited: Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500
ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bruce v Cole (1998) 45 NSWLR 163
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Comcare v Stefaniak [2020] FCA 560; 170 ALD 262
Commissioner for the Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576
Commonwealth v Beattie (1981) 35 ALR 369
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Karabolovska v Comcare [2019] FCA 2153; 169 ALD 117
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
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Details
- Case
- [2024] FCA 203
- Decision Date
CaseChat Overview and Summary
In the matter of Prosegur Australia Pty Ltd v Higgerson, the Federal Court reviewed the decision of the Administrative Appeals Tribunal (AAT) regarding a claim for workers' compensation. The dispute centred on whether the AAT correctly determined that the claimant, Mr Higgerson, did not suffer an aggravation of his pre-existing knee condition during an incident in October 2019, while employed by Prosegur Australia. The Tribunal had concluded that the 2019 incident did not cause a significant injury or aggravate the pre-existing osteoarthritis in Mr Higgerson's left knee. The primary legal issues were whether the AAT erred in finding that the 2019 incident aggravated the 2002 injury and whether it properly applied the relevant statutory provisions of the Safety, Rehabilitation and Compensation Act 1998 (Cth).
The Court found that the AAT's decision contained several legal errors. Firstly, the AAT did not adequately identify the specific injury that was allegedly aggravated in 2019, leading to confusion and lack of clarity. The Court noted that none of the expert witnesses provided evidence that the 2002 injury was aggravated by the 2019 incident, and no questions posed to the witnesses contemplated this possibility. The Court also highlighted that the Tribunal did not give adequate reasons for its finding and may have failed to provide Prosegur with procedural fairness by not allowing it to address this issue. Furthermore, the Court held that the AAT's conclusion that the 2019 incident caused an injury was not supported by any probative evidence. Consequently, the Court concluded that the AAT's determination was legally unreasonable.
The Court allowed the appeal, set aside the AAT's decision, and affirmed the reviewable decisions of the original tribunal. There was no order as to costs. This ruling underscores the importance of clear and supported findings in workers' compensation cases and the necessity for tribunals to ensure that all relevant issues are properly addressed and substantiated by evidence.
The Court found that the AAT's decision contained several legal errors. Firstly, the AAT did not adequately identify the specific injury that was allegedly aggravated in 2019, leading to confusion and lack of clarity. The Court noted that none of the expert witnesses provided evidence that the 2002 injury was aggravated by the 2019 incident, and no questions posed to the witnesses contemplated this possibility. The Court also highlighted that the Tribunal did not give adequate reasons for its finding and may have failed to provide Prosegur with procedural fairness by not allowing it to address this issue. Furthermore, the Court held that the AAT's conclusion that the 2019 incident caused an injury was not supported by any probative evidence. Consequently, the Court concluded that the AAT's determination was legally unreasonable.
The Court allowed the appeal, set aside the AAT's decision, and affirmed the reviewable decisions of the original tribunal. There was no order as to costs. This ruling underscores the importance of clear and supported findings in workers' compensation cases and the necessity for tribunals to ensure that all relevant issues are properly addressed and substantiated by evidence.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal be set aside.
3. The reviewable decisions be affirmed.
4. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
It follows that I would uphold ground (1)(a).Was there no evidence to support the impugned finding (ground 1(c))? Was the Tribunal’s conclusion legally unreasonable (ground 1(g))? It is convenient to deal with grounds 1(c) and (g) next. For reasons which will become apparent, it is also convenient to deal with these two issues together. Prosegur made two submissions. First, it contended that the Tribunal’s failure to identify the “injury (other than a disease)”, which was aggravated, “serves to highlight” the absence of evidence that the 2002 injury was aggravated in the October 2019 incident. Second, it submitted that none of the experts gave evidence that the 2002 injury was aggravated on 16 October 2019 and that proposition was not even suggested to them by the Tribunal or the parties. At all events, there was “no rationally probative evidence” of that and in those circumstances there was no lawful basis for the Tribunal’s finding that it was and hence for its ultimate decision. Mr Higgerson did not address this ground at all in his written submissions. It is trite that there is no error of law in making a wrong finding of fact or drawing a faulty inference of fact: Bond at 356. To succeed on this ground it is necessary for the Court to be satisfied that there is not a skerrick of probative evidence or material: M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed), Lawbook Co., at p 236 [5.270]. In Bruce v Cole (1998) 45 NSWLR 163 at 189 Spigelman CJ explained:[A] decision-maker who acts without probative evidence does not make a valid decision — to which conduct the word ‘perversely’ has appropriately been attached — does not make a valid decision. It is the equivalent of acting without evidence.{Thus,] a finding of primary fact … will be vitiated if there was no probative evidence to support it. Similarly an inference of fact is vitiated if it is not open on the primary facts properly so found … If, however, an inference is reasonably open, even if it appears to have been drawn as a result of illogical reasoning, there is no error of law: Bond at 356. None of the expert witnesses testified that Mr Higgerson aggravated the 2002 injury in the October 2019 incident. Nor did they say so in their reports. None of the questions directed to them contemplated that it was possible that the October 2019 incident aggravated the 2002 injury. Dr Bodel was asked by Mr Higgerson’s solicitors to express an opinion as to whether Mr Higgerson’s 2002 injury was aggravated by the October 2019 incident. He replied in his first report of 24 February 2020:This gentleman’s injury to the left knee originally began with the episode in 2002 (01 April 2002).The incident on 16 October 2019 has probably caused some additional structural damage in that abnormal knee and it has certainly caused an aggravation of the underlying pathology. The nature and conditions of his work is also an aggravating factor for the left knee and for the right knee as well.
Decision
Reasons for decision
It is abundantly clear from the evidence that all the experts attributed Mr Higgerson’s pain following the October 2019 incident to the osteoarthritis.The Tribunal’s decision The Tribunal found that Mr Higgerson had an “ailment” relating to his left knee which had manifested in symptoms of intense pain both before and after the October 2019 incident (at [79]). It found that the ailment was osteoarthritis of the left knee and that Mr Higgerson was suffering from that ailment at the time of the October 2019 incident (at [79]–[82]). In light of the medical evidence, it was not satisfied that Mr Higgerson’s employment with Prosegur made a significant contribution to the development of the osteoarthritis. Nor was it satisfied that the October 2019 incident had aggravated the osteoarthritis. Consequently, it concluded that the osteoarthritis was not a disease for the purposes of s 5B(1) of the SRC Act: see [83]‑[106]. Notably, the Tribunal observed at [86]:The doctors all agreed that his osteoarthritis in 2019 was attributable to the original incident in 2002. This was despite the slow progress of the disease and even though arthritis may have multiple causes. By contrast, the answers given in conclave ruled out any relevant connection between the 2019 incident and the aggravation of the underlying pathology of the knee, other than in a short-lived and trivial way. The Tribunal proceeded to consider whether the October 2019 incident caused an “injury (other than a disease)” to his left knee. It referred to the judgment in May and understood that, in order to come to an affirmative conclusion that the October 2019 incident was an injury within the meaning of the SRC Act, it would have to be satisfied that the incident “produced a physiological change or disturbance to the physiological state of his left knee” (at [110]). It noted the unanimous view of the medical specialists that there was no medical evidence of any significant injury occurring on that date. Consequently, it concluded:On balance, I am not satisfied that the medical evidence supports a finding that Mr Higgerson suffered a physical injury, in the primary sense of that word, on 16 October 2019. Medical evidence of an identifiable physiological change to his underlying knee condition is scanty. The Tribunal then asked itself two additional questions (at [113]), neither of which was put to the medical witnesses for their consideration in the conclave or in questioning thereafter, with a view to determining whether the October 2019 incident fell within the terms of the definition of injury in s5A(c). They were:•Does the evidence show aggravation of a physical injury (whether or not that physical injury arose out of, or in the course of, [Mr Higgerson’s] employment)?•If so, does the evidence demonstrate that the aggravation of the physical injury arose out of, or in the course of, [that] employment? The Tribunal answered both questions in the affirmative. It is the posing of these questions, the answers given, and the reasons offered in support which have given rise to the appeal.
Ratio Decidendi
Legal Principle Established
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