Re Bessey and Australian Postal Corporation
[2000] AATA 404
•23 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 404
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos A98/123, A99/44
General Administrative DIVISION )
Re DEREK ERNEST BESSEY
Applicant
And AUSTRALIAN POSTAL CORPPORATION
Respondent
DECISION
Tribunal Mr Peter Bayne, Senior Member, Dr M D Miller and Air Marshal Gration, Members
Date23 May 2000
PlaceCanberra
Decisions In matter A98/123, the Tribunal sets aside the decision under review and in its stead decides that that the applicant was incapacitated for work as a result of an injury to his back. He is entitled to compensation under the Act. The respondent is directed to make a calculation under section 19 in the light of our findings in relation to those times when the applicant was not offered suitable employment. The parties are at liberty to apply to the Tribunal for further directions or finding in this respect. In matter A99/44, the Tribunal affirms the decision under review. The respondent is to pay the applicant's reasonable costs of these proceedings as agreed or taxed. In this respect, the parties are at liberty to apply to the Tribunal for a variation.
(Signed P Bayne)
Senior Member
CATCHWORDS
COMPENSATION – injury –disease – aggravation of – contributed to in a material degree by employment- incapacity for work – suitable employment – permanent impairment- costs general practice
ADMINISTRATIVE APPEALS TRIBUNAL – Jones v Dunkel reasoning – leading questions – withholding of information by respondents – legal professional privilege claims by respondents – respondents as model litigants - – permanent impairment claims by applicants – jurisdiction in respect of permanent impairment claims – inadequacy of s 37 statements and documents – requirements of statements of facts and contentions – failure to comply with a summons – inadmissibility of video evidence disclosed at hearing– procedure for receipt of video evidence - – inadmissibility of medico-legal reports disclosed late
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 4 and 19
Administrative Appeals Tribunal Act 1975 ss 33 and 37
Authorities
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Postal Commissions v Hayes (1989) 23 FCR 320
BHP Pty Ltd v Mason (1996) 67 SASR 456
Brown v Commonwealth (Federal Court, 28 August 1986)
Bushell v Repatriation Commission (1992) 175 CLR 408
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
Commonwealth v Ford (1986) 65 ALR 323
Esso Resources Ltd v Commissioner of Taxation (1999) HCA 67; 74 ALJR 339
DiMichel v South Buffalo Railway Co (1992) 590 NY Supp 2d 1
Elleissy v Australian Postal (1989) 18 ALD 240
Favelle Mort Ltd v Murray (1976) 133 CLR 580
Federal Broom Pty Ltd v Semlitch (1964) 110 CLR 626
Freeman v McKenzie (1988) 82 ALR 461
Fusco v General Motors Corporation (1993) 11 F 3d 259
Goldberg v Ng (1995) 185 CLR 83
Jones v Dunkel (1959) 101 CLR 298
Kennedyv Richter [1957] VR 515
Lees v Comcare [1999] FCA 753
McDonald v Director-General of Social Security (1984) 1 FCR 354
McDougal v McCammon (1995) 455 SE 2d 788
Mills v Australian Postal Corporation (1994) 50 FCR 47
Olivier v LeJejeune (1996) 668 So 2d 347
O'Neill v Commonwealth Banking Corporation (1987) 13 ALD 234
Orgeron v Tri-State Road Boring Inc (1983) 443 So 2d 65
Payne v Parker [1976] 1 NSWLR 191
R v Moodie; Ex parte Mithen (1977) 17 ALR 219
Robbins v Harbord (1994) 62 SASR 229
Scott v Handley [1999] FCA 404
Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473
Telstra Corporation Ltd v Barrow (1994) 19 AAR 523
Tippett v Australian Postal Corporation [1998] 335 FCA
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Re Curtis and Australian Postal Commission, 30 March 1995, AAT decision No 10098
Re Chowdhary and Comcare [1998] AATA 448
Re Payne and Comcare (1997) 48 ALD 733
Re Prica and Comcare (1996) 44 ALD 46 at 59 Olivier v LeJejeune (1996) 668 So 2d 347
Re Taxation Appeals NT94/281 - NT94/29 (1995) 21 AAR 275
Re Cimino and Director-General of Social Services (1982) 4 ALN N 106
Re Crnkovioc and Repatriation Commission (1990) 20 ALD 131
Re Ermolaeff and Commonwealth of Australia (1989) 17 ALD 686 at 687
Re Patten and Australian Telecommunications Commission (1984) 6 ALD 303
Re Palsa and Australian Postal Corporation (1990) 20 ALD 407
Re Lindsey and Australian Postal Commission (1989) 10 AAR 457
Re MacFarlane and Comcare [1998] AATA 680
Re Velovski and Telstra Corporation (1998) 26 AAR 454
REASONS FOR DECISION
23 May 2000
Mr Peter Bayne, Senior Member
Matter A98/123 is an application to review a decision of Mr D Viquerat, an Independent Review Officer ("IRO") of the respondent, made on 19 February 1998 (T 42). It affirmed a primary decision of 16 December 1997 (T 38) to cease compensation payments to the applicant under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") from that date. Matter A99/44 is an application to review a decision of Mr N Williams, an IRO of the respondent, made on 17 July 1998 (T 58 of the second bundle). It affirmed a primary decision of 1 June 1998 (T 50 of the second bundle) to reject a claim for compensation payments to the applicant under the Act in respect of an incident at the applicant's workplace on 21 April 1998. We will deal with A98/123 before turning to A99/44.
At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "AAT Act"), and a number of documentary exhibits. The transcript runs to 292 pages.
In terms of the relevant law we note here the definition of injury in the Act. Section 4(1) defines injury exhaustively:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of , the employee's employment; or(c) an aggravation of a physical or mental injury (other than a disease suffered by an employee (whether or not that injury arose out of, or in the course of, that employment), being an aggravation that arose out of or in the course of , that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.The definition of "disease" is critical. Section 4(1) defines injury exhaustively:
"disease" means:
(a) any ailment suffered by an employee;
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.The word "ailment" is defined in section 4(1) to mean "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development". For present purposes, we consider that spondylosis, or a degenerative condition of the lower back, is an ailment.
The relevant parts of section 19 provide that:
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NWE – AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a) where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;
[Further paragraphs govern where the employee is employed for a part or the whole of a week. The concept of "suitable employment" is employed in these paragraphs.]
...(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: …
(a) where the employee is in employment – the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; …(f) where paragraph ... (b), (c), (d) or (e) applies to the employee - whether the employee's failure to ... continue to engage, in employment ... was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant."
So far as concerns this matter, "suitable employment" is defined in paragraph (b) of that definition in s4(1) to mean:
"... any employment ... having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv)".
Subparagraph (a) of the definition refers to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational training;
(iii) ... and
(iv) any other relevant matter
"Incapacity for work" is defined non-exhaustively in section 4(9), and, so far as relevant here, provides:
(9) ...incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth...immediately before the injury happened.
Details of the applicant's personal and work history are in the T documents and various medical reports.
The primary decision of 16 December 1997 (T 38) needs to be understood against a background of prior developments:
On 1 July 1997 the applicant reported an injury described as "severe pain/lower back" (T3), stated to have been incurred in the course of delivering mail over the years 1989-1997.
The 3rd of February 1995 was said to have been the date when this injury was first noticed. At about that time, the applicant had seen his then GP, a Dr Doherty, who had, apparently, explored whether some kidney problem was the cause.
It was not until January 1997, after the applicant had seen his new GP, Dr McIvor, that he attributed his lower back pain to his work as a postman. At T documents p 57 is a letter from Dr McIvor. In effect, it says that the applicant has a chronic low back problem that is "aggravated by bike riding at work". (The applicant had, for several years, been riding a 110 cc 'step-through' motor bike while doing the postal rounds.)
The applicant's supervisor, Mr Pellow, took the applicant off motor bike riding as soon as he, Mr Pellow, became aware of Dr McIvor's view (see T documents, p 12).
On 11 February 1997 an officer of the respondent referred the applicant for examination by Dr Scott, an occupational physician (T 19). Dr Scott saw the applicant on 24 February and reported back to the respondent (T 20 and 21).
Dr Scott opined in an interim report that the applicant had "degenerative spondylosis of his lumbar spine which is aggravated by his motor-cycle riding and twisting movements. I consider also that this will progress with time, and especially if further aggravated. He should be fit to transfer to motor vehicle duties … . He would be fit for night sorting but for the twisting movements required which I believe would aggravate his back condition" (T 20).
Dr Scott's formal report (T 21) was to the same effect. It did note that the applicant had not given a history of past back injury. He also reviewed an X ray analysis by a Dr Pierce of late January 1997. He noted that the applicant had been a motor-cycle postal delivery officer for the last 14-15 years. He made a physical examination.
From February 1997 the applicant was placed on restricted duties. These are summarised in T 22, a memorandum of Mr Pellow written on 1 July 1997. They were described as part of a "walk-beat"; (although it emerged in evidence that this beat was somewhat unique and probably is not best described as part of a regular beat). This involved the applicant walking around various streets in Belconnen, a business and residential area of Canberra. The applicant pushed a buggy containing mail and delivered it to relevant premises. (There is detail in various documents concerning what this work required.) In addition, the applicant 'threw-off' (pigeon-holed) and 'set-up' (sequenced by street and number) the mail prior to walking the beat. The walk took about 2.5 hours. The memo of Mr Pellow also states that the applicant performed his "normal supervisory duties and other indoor duties such as weighing off peak mail and distributing of UDS mail".
On 1 July 1997 the applicant lodged a claim for compensation under the Act in respect of the injury he had notified on the same date (T 4).
At some point, as evident from the document at T 10, p 33, the applicant's claim for compensation was accepted "in respect of an aggravation of degenerative spondylosis as a result of the incident of 29 January 1997". He was paid compensation (presumably under section 19 of the Act) for a week's lost wages.
T 22, the memorandum of Mr Pellow written on 1 July 1997, also indicates that at this point there was some reconsideration within Australia Post of the applicant's capacity for work. Mr Pellow referred to the applicant's golf-playing, and also that the applicant had told him that this activity would not aggravate his condition. Mr Pellow thought that this was inconsistent with the report of Dr Scott.
Perhaps as a result of T 22, the respondent sought and obtained a report from Dr Chen. Her report of 6 August 1997 is at T 23. It is dealt with below.
It appears that on 20 August 1997 there was a determination made that the applicant be paid compensation in respect of the compensable injury for an absence covering the period 1 to 18 July 1997 (T 24 and T 27). But he was also told that any future claims would need to be supported by medical evidence.
A report by a physiotherapist (T 26) of 15 September 1997 opined that the walk-beat was within the applicant's capacity, but she noted that the applicant had complained about increasing the walking because of a problem with his left knee.
On 20 August 1997, the applicant was advised by the respondent that, on the basis of Dr Chen's report (see later, para 25), the compensable injury was now regarded as having made no contribution to any incapacity of the applicant for work as from 14 February 1997 (T 27). Thus, the determination of 20 August covering the period 1 to 18 July 1997 was revoked.
Following the report by a physiotherapist (T 26), Dr Chen addressed the issue of the applicant's capacity for the walk-beat work in reports of 21 November 1997 (T 32) and 15 December 1997 (T 37).
Then followed the primary decision of 16 December 1997, and the reviewable decision of the IRO of 19 February 1998. The IRO took into account a report of Dr McGrath, who had reported to the applicant's solicitors on 10 November 1997 (T 36).
On 17 April 1998 the applicant sought review by this Tribunal of the IRO decision.
was the applicant suffering from a compensable injury on the date he ceased to ride motor-bikes as a postal delivery officer?
Summarising his submissions in this respect, Mr Jones, counsel for the respondent, said:
[t]he applicant suffers from a constitutional degenerative back condition and that condition has gradually been productive of symptoms over a number of years in the absence of any single traumatic event; that the symptomatology is consistent with progression of the constitutional degenerative condition; that the riding of the motor bike may have caused some exacerbation of symptoms or aggravation of the condition; that the aggravation would have been limited to at the most a couple of weeks; that certainly any aggravation would have ceased by December 1997.
We agree with this, excepting that we find that the riding of the bike did aggravate the back condition. Stating the matter at this point generally, we find that the applicant suffers from degenerative spondylosis of the lower back. This condition is not attributable to the work the applicant has undertaken as an employee of Australia Post. We note that an X-ray taken of the applicant's back in January 1987 (Exhibit R 2) revealed the underlying condition. At this point, the applicant had for some years been working as a motor-bike postman, but we accept the respondent's submission that this work had not made a material contribution to the onset of that condition. Nor do we consider that taking a view at January 1997, it may be found that the applicant's work as a motor-bike postman had "accelerated" the adverse (to the applicant) progress of the underlying condition. But the opinions of a number of medical experts – including medico-legal consultants of the respondent – are to the effect (although they may not put it in the words of the Act) that this work "aggravated" the underlying condition. On this basis, the applicant was, at the time he ceased to ride the motor-bikes, suffering from an "injury" as defined in section 4(1). This is so on the basis that he suffered from a "disease". In turn, this rests on the bike riding being an aggravation of the disease of degenerative spondylosis. This aggravation was "contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation". We will now explain these findings.
The concept of aggravation has been the subject of judicial exegesis. The result may be what the word connotes in its ordinary meaning, but it is critical to note what the Federal Court has said that meaning is. The cases are analysed in J Ballard and P Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (4th ed, 1999, Federation Press and Softlaw Community Projects) at paras 4.03 – 4.04. The authors quote Hill J in Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 405:
"aggravation" connotes the disease becoming more severe and "acceleration" connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one.
The authors quote Finkelstein J in Tippett v Australian Postal Corporation [1998] 335 FCA (6 April 1998):
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury: Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 179-180. The same is true if the pain caused by an underlying condition has dissipated but returns as a consequence of the activities that are undertaken during the course of an employee's employment: Canberra Abattoir Pty Ltd v Asioty (unreported, Full Court, Federal Court, 26 April 1988) a proposition which was not disturbed on appeal at (1989) 167 CLR 533.
We now consider the phrase "was contributed to in a material degree by the employee's employment by the Commonwealth". That concept was considered by the High Court in Favelle Mort Ltd v Murray (1976) 133 CLR 580 and earlier in Federal Broom Pty Ltd v Semlitch (1964) 110 CLR 626, which latter decision guided the analysis in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 322 ff of the definition of "disease" in the Compensation (Commonwealth Government Employees) Act 1971 (the "1971 Act").
In Treloar at 323, the Full Court set out extracts from the judgments of Kitto J and of Windeyer J in Semlitch and concluded:
"In our opinion, it follows from what is said and, indeed, from what is not said in these passages and from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a "contribution". Consistently with what was said by Windeyer J, "contribution" does not require that the contributing factor be a sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or its acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".
The focus must be on the work of the employee - what it is he or she is required to do, or to be, and so forth, in the doing of her or his work. In Elleissy v Australian Postal (1989) 18 ALD 240 at 243, Hill J said that "[t]he issue for consideration under the Act is whether what the employee in fact does in his employment contributes in a positive way to the contracting of, acceleration of, or aggravation of the [employee's] illness".
It is useful to bear in mind the words of Pincus J in O'Neill v Commonwealth Banking Corporation (1987) 13 ALD 234 at 236:
Although from time to time suggestions have been made as to the proper meaning of the statutory language set out above, it is doubtful if the process of analysing its meaning helps much, in the ordinary case. To ask the question whether a particular employment was a contributing factor to the contraction of a disease or to its aggravation, acceleration or recurrence is not to use language of a technical character.
A similar point was made by Mason JA (as he then was) in Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29, in a judgment relied on by the Full Court of this court in Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533 at 537. His Honour said, at 44, in effect, that questions of causation in the application of workers' compensation legislation "are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation". At 47 he referred to a decision of the New South Wales Court of Appeal as emphasising "that the question of causation is essentially one of fact". In Kirkpatrick's case, after referring to these passages, the Full Court said at 527: "Eschewing metaphysics, the decision of the Tribunal is in this case fundamentally a finding of fact upon a commonsense consideration of the factors which led to the applicant's condition...We now turn to the words "in a material degree" in the definition of "disease" in s4(1) of the Act. In Treloar, the Court was concerned with the definition of disease in the 1971 Act. On the face of it, the definition of "disease" in the 1988 Act is more stringent than that in the 1971 Act. The current definition requires the decision-makers and this Tribunal to find that the onset of the aggravation of a disease "was contributed to in a material degree by the employee's employment" (emphasis added). In Treloar, a case that arose under the 1971 Act, the Full Federal Court expressly refrained from comment on the way in which the definition of "disease" in the 1988 Act should be approached (supra at 321).
We consider that we may have regard to the relevant second reading speech of the Minister who introduced the Bill which contained the definition of "disease" found in the 1988 Act; (see Acts Interpretation Act 1901, s15AB). In that speech, the Minister said:
Under the existing Act an employee was required to establish only that his or her employment was a contributing factor in the contraction of the disease. This test does not adequately reflect the rights and obligations of the Commonwealth and its employees in relation to work-related disease and frequently results in the Commonwealth being liable to pay compensation for diseases which have little, if any, connection with employment. This Bill seeks to remedy that situation by requiring an employee to show that his or her employment contributed in a material degree to the contraction of the disease. The Government believes that this is a test which is firm but fair and which properly reflects the balance between the interests of the Commonwealth as employer and its employees. An employee will not be required to demonstrate that his or her employment caused the disease, or even that it was the most important factor in the contraction of the disease. It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease. Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged.
In determining whether employment contributed in a material degree to the contraction of the disease in a particular case, regard would be had to whether the employment in which the employee was engaged carried an inherent risk of the employee contracting the disease in question and whether some characteristic or feature of the employment tended to cause, aggravate, or accelerate the disease. A disease which has been contributed to in a material degree by employment will be deemed to be an injury. Compensation will be payable if that injury results in the death, incapacity or impairment of the employee. (House of Representatives Hansard, 27 April 1988, 2192-2193)On principle, an interpreter should recognise that the addition of the word "material" has affected the way a decision maker and this Tribunal should apply the definition of disease in the 1988 Act; (see D Pearce and R S Geddes, Statutory Interpretation in Australia, (1996, 4th ed), para 3.18). However, all that may be said is that under this Act, the decision maker must look for a somewhat greater degree of contribution (amounting to a "material" one). Given that the application of the two different tests have been made or will be made in greatly varying factual situations, it will be hard to fix just where lies the point of difference. Looking at the Minister's speech, all that may be said is that a "material" contribution is one that is more than a "mere" contribution, but less than the "most important factor in the contribution". This does not take the matter very far.
In Mills v Australian Postal Corporation (1994) 50 FCR 47 at 54, however, Ryan J, basing his reasoning on a passage in Treloar, held that "the concept of materiality introduced into the [definition of disease in the 1988 Act] does not make less applicable the reasoning adopted by the High Court in Semlitch". The Tribunal is bound by this holding, but it means only that a decision maker must still focus on what the employee does in her or his employment. Thus, to adopt what was said by Hill J in Elleissy (supra) in the light of the definition in the (current) 1988 Act, the issue is whether what the employee in fact does in her or his employment contributes in a material way to the contracting of, acceleration of, or aggravation of the disease.
We will first review the reports of the respondent's medico-legal consultants.
The first in temporal sequence is Dr Scott. His role and his reports have been noted above. He examined the applicant soon after the applicant had notified the respondent of the advice he had received from Dr McIvor (see above). The respondent accepted Dr Scott's report and the advice he gave that the applicant's motor-bike riding aggravated the applicant's spondylosis. The respondent did not call Dr Scott, seek to adduce any further evidence from him, or to explain his absence.
It is therefore appropriate to reason that the opinion expressed in the report of Dr Scott, may be more easily accepted given the respondent's failure to adduce evidence from the doctor; see Jones v Dunkel (1959) 101 CLR 298, and Re MacFarlane and Comcare [1998] AATA 680, at para 52ff. This assumes that the doctor is in the camp of the respondent, and that his absence is unexplained; see Payne v Parker [1976] 1 NSWLR 191 at 201. Where the missing witness is a medico-legal consultant of the relevant party, these assumptions are often justifiable; cf Kennedyv Richter [1957] VR 515. On the other hand, while Jones v Dunkel reasoning is a product of the adversarial mode of common law trials, Tribunal review is essentially inquisitorial; see Bushell v Repatriation Commission (1992) 175 CLR 408 at 425. There may be circumstances where the Tribunal may fail in its obligation to arrive at the correct or preferable decision in the case before it if it simply allows the evidence to remain in the state it is after the parties have adduced their proofs. In particular, if there is a "missing witness", then the Tribunal may be obliged to call that witness.
In the circumstances here, there is some justification in applying Jones v Dunkel reasoning. The missing witness is a medico-legal consultant of the respondent, and his report clearly creates a difficulty for the respondent. We do not place great weight on the absence of the doctor from the witness box, but it is a matter to be taken into account when determining whether the applicant's work as a motor-bike postman aggravated his degenerative spondylosis. Adapting what was said by Sholl J in Kennedyv Richter [1957] VR 515 at 517, one might in this matter say that as a matter of common sense, the fact that Dr Scott is not called, and no other explanation is offered for his absence, warrants the inference that he could not, if called, contradict or qualify the opinion in his reports in a way in which it would be helpful for the respondent to be able to contradict or qualify those opinions.
Next in sequence is the report of Dr Chen of 6 August 1997 (T 23, see at T documents p 76). After examination, she diagnosed the applicant as having episodic degenerative lumbar spondylosis. He would have "episodes of exacerbation from unaccustomed exertion and activities". She said that "[t]he previous episodes of low back pain appear to have been associated with motorcycle riding, and it is consistent that this condition may be temporarily aggravated by the latter and other activities such as heavy manual loading". Speaking at 6 August 1997, some 6 months after the applicant ceased to ride the bikes, Dr Chen said that the applicant's "current condition may no longer be attributable to his employment. Any aggravation of his condition attributable to riding a motorcycle would have ceased within approximately two weeks of discontinuing the activity".
Dr Chen further opined that while the applicant's current condition may no longer be attributable to his employment, "I consider him to be partially incapacitated as a result of constitutional lumbar spondylosis". What she meant may be gathered from her opinion that the applicant should avoid "repetitive heavy manual handling and delivering mail on a motor-cycle".
Dr Chen made it clear that she thought that delivering mail on a motor-cycle had aggravated the applicant's lumbar spondylosis. Her view that this is so is not necessarily an answer to the question of law whether the motor-cycle riding aggravated the disease of lumbar spondylosis. She (and any other doctor whose report we consider) may not have employed the term "aggravation" in the sense it bears in the definition of "disease". One must look further to examine the reason why a doctor thought that an event was an aggravation. It is that reasoning that will be helpful to the Tribunal in making a finding that the event is or is not an aggravation of a disease. On the other hand, a doctor who did not employ the term aggravation to explain the effect of an event on a disease may nevertheless have justified the use of the term he or she did employ (such as 'exacerbate', or 'accelerate') in such a way as to reveal that the doctor was in effect saying that the event aggravated the disease.
A consideration of the report of Dr Chen, and of her oral evidence, makes it clear that she was in effect saying that the event – the motor-bike riding - aggravated the disease. Her opinion is that the disease made the underlying degenerative spondylosis more severe. She accepted that the pain that arose from riding the bike increased or intensified the symptom of pain that arose from the underlying condition, albeit that that pain might dissipate if the applicant stopped riding the bikes. In addition to her report noted above, we refer to her oral evidence. In chief, after the applicant's golf-playing ability was drawn to her attention, she opined that there was "not a lot wrong with his back". She did, however, restate the opinion evident from her report that while the bike riding did not produce any permanent underlying change in the back, it would produce episodes of pain.
It is clear that Dr McGill, another medico-legal consultant of the respondent, holds the same opinion as Dr Chen. His report of 11 November 1999 is Exhibit R 10, and is based on his examination of the applicant on the same day. He had X-ray reports of 1987 (Exhibit R 2), and of 3 February 1993 and 30 January 1997. He found that "[the applicant's] low back symptoms are related to constitutional degenerative disease. Riding on the motor bike increased his back symptoms while he was performing that activity but riding on the motor bike (including over bumpy ground) and with work duties involving back twisting would not have altered the progression of his degenerative low back disease. His back problem is entirely related to his constitutional degenerative change" (R 10 at p 6). On examination in chief, Mr Jones elicited this opinion in various ways. He explained the statement just quoted in terms that "the degree of force involved on his back with his work duties [on the bike] would not have been sufficient to alter his back" (transcript 187). Dr McGill also said that the "minor repetitive forces being put through the spine" would not have had "any effect on the spine" (ibid at 188), or "any influence on his back" (ibid at 189).
In re-examination, Mr Jones, asked whether Dr McGill would expect, from his "observation of your local postie delivering mail to your letter box and to other letter boxes to encounter any significant forces to their back which may lead to a significant or continuing aggravation of this man's back condition". Dr McGill answered simply "no"; (transcript 199).
This question was in substance leading in that it admitted of a simple 'no'. Leading questions are those that directly or indirectly suggest the answer desired, or that assume the existence of disputed facts; (cf section 37(1) of the Evidence Act 1995 (Commonwealth). (The latter kind of question is better (or perhaps also) described as an improper or oppressive question, in order to avoid the odd result that a court might permit it to be asked; cf sections 37(1)(a) and 41). A question which by embodying a material fact, admits of a conclusive answer by a single affirmative or negative may be leading – in the sense that it indirectly suggests the answer desired - depending on whether the fact embodied in the question was in dispute; (see Cross on Evidence (6th Australian Edition, 2000) para 17500) An example is the question: "Did you see another car coming very fast from the opposite direction?", where that is a disputed issue of fact; (see S Odgers, Uniform Evidence Law, (3rd ed, 1998), commentary to section 37).
Mr Jones did indirectly suggest that the activity of "[the] local postie delivering mail to your letter box and to other letter boxes" was not such as to lead to a significant or continuing aggravation the applicant's back condition. It should not have been asked in this form. There is no general liberty to put leading questions to one's own expert witness. Looking at section 37(1)(e) of the Evidence Act, leave may be granted in order to elicit an opinion based on a hypothetical set of facts. This was not, however, the case here; (nor was leave sought). We have not, however, attached any significance to this matter. There are more significant problems. First, there was no attempt to elicit evidence as to just what was Dr McGill's extent of observation of his local postie's letter delivering methodology. His chambers are in Newtown, NSW. We do not know whether the posties there deliver mail on a bike or on a walk-beat. Secondly, and more fundamentally, Mr Jones did not seek to have Dr McGill qualify his opinion that "riding on the motor bike may have increased his symptoms while he is performing that activity"; (the only relevant symptoms were pain in the back). It is clear that Mr Jones examined Dr McGill on the basis that this was the doctor's opinion; see transcript 187). It is clear from his report in Exhibit R 10 that this is his opinion.
This being the opinion of Dr McGill, its effect is that riding on the motor bike aggravated the applicant's condition of degenerative spondylosis, as the term "aggravation" employed in the definition of "disease" is properly understood.
Dr McGrath, a medico-legal consultant called by the applicant, was of the opinion that the applicant did not have a constitutional problem with his back. (His report is T 36). Rather, the spondylosis was a reaction to external events, such as repetitive low grade trauma, some specific traumatic event, or in some cases as a consequence of Scheuermann's disease which may lead to premature ageing of the discs and structures; (transcript p 114). He thought that it was reasonable to find that the applicant's work as a postman had caused the spondylosis. In cross-examination, he modified his opinion somewhat, but adhered to the view that the "repetitive forces riding on a motorbike lopsided for a period" were "occupational aggravators" (transcript p 118).
We find below that the condition of spondylosis was not in any relevant sense caused by the applicant's work riding a motor-bike. As we understand the state of medical knowledge, Dr McGrath's opinion as to the cause of spondylosis is not generally accepted. It is also inconsistent with the opinions of other doctors called by the applicant. But, even if it cannot be said that it is implicit in the opinion of Dr McGrath that the motor-bike riding was an aggravation of the spondylosis, (and we think that is fair understanding), his opinions are not inconsistent with that view.
Dr Griffith, a medico-legal consultant called by the applicant, was of the opinion that the applicant had a "multilevel degenerative disease, particularly affecting the upper lumbar vertebrae … there was significant spondylosis disease present in 1987 (though I have not viewed [the X-rays taken on 15 January 1987]" (Exhibit A2, being Dr Griffith's report of 1 June 1999, p7). He opined that "[I]n the course of his work related duties, I consider that he suffered aggravation to symptoms referable to his lumbar spine whilst carrying out his duties as a postal delivery officer" (ibid). Dr Griffith's understanding of what was required in riding the motor-bike (ibid at 1-2) accords with the evidence given to the Tribunal in this respect by the applicant and indeed by Mr Pellow. It is clear that Dr Griffith thought that the motor-bike riding was a significant contributor to aggravating symptoms of the lumbar spine (transcript p 166-167). We find that Dr Griffith was employing the concept of aggravation as it is employed in the definition of disease.
Dr Smith is an orthopaedic and trauma surgeon who treated the applicant in relation to the latter's left knee problem. He reported to the applicant's solicitors in respect of the knee on 7 April 1999 (Exhibit A3). The report did not address any relevant issue in relation to the applicant's back. In cross-examination, he expressed a view that "any continuing back pain" (that is, at the date of the hearing), was unlikely to be related to the applicant's work on the motor-bike (transcript p 173). The transcript reads:
And I think it fair to say that your view is that any continuing back pain would not be related to that work on the motorcycle? --- Well, I – there was no particular episode of single trauma, as I recall.
Yes? – With regard to the motorcycle work to explain the discomfort in the back.
Right? – So my feeling was that it was unlikely to be related.In submissions, Mr Jones submitted that Dr Smith had said "I don't think this man's back problem is anything to do with his time on the bike". Manifestly, the evidence Dr Smith gave does not justify this submission if it were meant to address the situation in early February 1997. Dr Smith expressed no view at all about whether, at the time in early February 1997, the motor-bike work had made any contribution to the symptoms of pain the applicant then experienced in his back. His opinion related to his back condition as it is today. We take it that that is the time Mr Jones had in mind.
Thus, we find that the riding of the bike did aggravate the applicant's back condition. The primary support for this view may be found in the reports of the respondent's medico-legal consultants, and is consistent and supported by the reports of the applicant's medico-legal consultants.
We also find that the riding of the bike contributed in a material degree to this aggravation. We note that all medical reports (apart from Dr Smith, who did not consider the applicant's back) saw a clear and significant link between the bike-riding and the aggravation of the applicant's back condition. Dr Scott's report identified the applicant's motor-bike riding as the source of the aggravation of the applicant's spondylosis, (above para 22), and recommended that the applicant not ride the bikes. Dr Chen's view was that "[t]he previous episodes of low back pain appear to have been associated with motorcycle riding, and it is consistent that this condition may be temporarily aggravated by the latter and other activities such as heavy manual loading" (above para 25). She thought that he was incapacitated from riding the bikes. Dr McGill thought that riding on the motor bike increased his back symptoms while he was performing that activity (above para 29). Dr Griffith thought that the motor-bike riding was a significant contributor to aggravating symptoms of the lumbar spine (transcript p 166-167).
was the applicant incapacitated for work at the time he ceased to ride the motor bikes?Our next relevant finding is that the applicant was incapacitated for work from the day he ceased to ride the motor-bikes. The non-exhaustive definition of incapacity for work in section 4(9) of the Act includes a situation in which the employee has an incapacity to engage in work at the same level at which he or she was engaged by the [respondent] immediately before the injury happened.
It was said in Re Prica and Comcare (1996) 44 ALD 46 at 51:
The phrase "at the same level" in para (b) of the definition does not appear to have been the subject of consideration by a Court or this Tribunal. The reference to "level" could be construed as a reference to a grade or salary level or could be a reference to the nature of the work in the sense of its characteristics, which will include its degree of difficulty. If the former construction were adopted it would produce the apparently anomalous result that a person with severe (or moderate) disabilities would be found to lack any incapacity for work as long as they continued to occupy the same grading or earn the same salary as at the date of the injury. The anomaly would not arise under the latter construction. A finding of an incapacity itself does not necessarily result in any entitlement to periodic or lump sum compensation under the Act. There are additional requirements in ss 19, 24 and 27 concerning those issues. Hence a construction of s 4(9)(b) which permits a finding of an incapacity for work in circumstances where the Applicant subsequent to an injury is engaged in light duties at their former salary does not produce any anomaly within the Act and recognises that incapacity for work is a relative concept and a matter of degree.
It is clear from the medical reports reviewed above that the applicant will always be incapacitated for work as a motor-bike rider. That work will aggravate his back condition and cause him to suffer an injury. (It was for this reason that the respondent's medico-legal consultants, Drs Scott and Chen, recommended that the applicant no longer ride the bikes.) Thus, we find that the applicant has, in the relevant sense, an incapacity for work. He was not capable, as from early February 1997, of engaging in work of the same characteristic, including its degree of difficulty, as he was prior to that date.
what was the applicant able to earn in suitable employment after the injury to his back?Thus, the applicant was, and remains entitled to compensation under section 19(1). But the amount of compensation must be assessed under the other provisions in section 19. A critical matter here is whether, during the period of incapacity, the applicant has been "able to earn in suitable employment".
We turn now to whether the walk-beat and associated work is "suitable employment". This work required the applicant to walk on the footpaths of certain streets in Belconnen, pushing a buggy that contained letters and other matter for delivery. The applicant had to negotiate some flights of stairs, (the number being a matter of some dispute), and to manage gentle inclines of the road. These details are not, in the end, of great significance. At the time he undertook this work, and subsequent to his ceasing the work, the applicant played 18 holes of golf on the Saturday of most weekends.
For the period from February 1997 to May 1998, when the applicant worked the walk-beat and the associated work, the conclusion must be that he was engaged in "suitable employment". That is subject to this qualification. If there were times after 21 April 1998 when the applicant's medical advisers certified that he could not work because of the pain the applicant experienced in his left knee, then during those periods the applicant was not able to earn in "suitable employment". At the point where the applicant ceased altogether to perform the walk beat work, that work ceased to be suitable employment. We will now justify these latter two findings.
We consider first the evidence of Dr McGill, a medico-legal consultant of the respondent. His report of 11 November 1999 is Exhibit R 10, and is based on his examination of the applicant on the same day. He examined the applicant's left knee and was aware of the arthroscopy performed by Dr Smith on 22 May 1998. He had a history of the applicant's soccer playing history, and was aware that he played golf regularly. He said (R 10, pp 5-6):
[The applicant] has advanced osteoarthritis of the left knee on a background of soccer related knee injury resulting in removal of most of both the lateral and medial menisci in the early 1970's and also rupture of at least the anterior cruciate ligament. His knee arthritis forced him to change from a running soccer game to goalie for a couple of seasons and then he had to cease soccer completely three or four years ago. … Arthroscopy at the end of May, 1998 demonstrated advanced osteoarthritic change in all three compartments of the knee joint. The arthroscopic findings were those of long standing degenerative arthritis as a result of the previous meniscal and ligamentous injuries. In the light of the history he provided and the arthroscopic findings[,] I think it very unlikely that he suffered any significant incident in May, 1998 during the course of his work activities.
…
His left knee osteoarthritis is the result of his previous soccer related injuries. His walking beat would have increased the discomfort in his knee at that time but the walking he performed would not have accelerated the changes in his knee and his current [note, at 11 November 1998] knee symptoms would have been the same regardless of the walking he performed with Australia Post.…
Because of his left knee osteoarthritis he is not fit to perform extended walking.…
His left knee will continue to deteriorate.When speaking of the work the applicant could perform, Dr McGill did not mention the walk-beat.
From this report, one may conclude that at 11 November, the walk beat work was not suitable employment given that it would have increased the discomfort in his knee. This conclusion is easier to draw in the light of the respondent's examination in chief of Dr McGill. Mr Jones put to Dr McGill the details of the applicant's golfing activities and asked:
Doctor, the fact that he is able to play the golf on the Saturday after performing his walk beat for five days during the week, does that say anything to you about the degree or length of any aggravation caused by the walk beat during the week to his left knee? (transcript p 190)
Dr McGill answered:
Well, I think it reflects the degree of discomfort in the knee. I guess it also does reflect somewhat on the situation of any aggravation that might be caused by the walking but, really, again, the data for knee osteoarthritis is that walking doesn't produce any aggravation other than when you're actually doing the walking (ibid).
Mr Jones put to Dr McGill the detail of two incidents in 1998 at which times the applicant suffered some particular pain to his left knee. (These incidents are the subject of A99/44). On 21 April 1998 the applicant felt a clicking in his left knee, and on 2 July he jarred it when he was forced to take action to avoid being hit by a van. Mr Jones also put to Dr McGill the applicant's golfing activities after these incidents (transcript p 192). Dr McGill accepted Mr Jones' suggestion that the effects on the knee of both those incidents would have been short-lived.
This exchange also occurred in Dr McGill's examination in chief:
Mr Jones: … what do you think about him returning to a walk beat pushing along a trolley and a walk beat being for about two to two and a half hours he delivers mail. He has to go up a couple of ramps and he has about four flights of steps, this over the entire beat, which he cannot avoid. There is about 20 steps in each flight. What do you think about that sort of work for this person?
Dr McGill; Well it won't do his knee any harm but he has substantial osteoarthritis in his knee. You mentioned to me, he mentioned to me as well, that he plays golf. Nevertheless, if he felt that when he walks, and I presume also when he plays golf he gets pain in his knee, I'm not sure how reasonable it is to make him do that activity. Obviously his enjoyment of golf is such that he doesn't mind putting up with presumably the discomfort he feels in his knee. I presume his enjoyment of work doesn't give him the same incentive … . Could he feel some discomfort in his knee while doing those activities, the answer is yes. Is it reasonable to make him do those activities despite getting some discomfort in his knee, well, I think probably it would be better to allow him to do work that didn't require him to do that.
Mr Jones; I mean, that is ultimately a personal choice, is it not?
Dr McGill: That is true.This last question is blatantly leading, and if the answer was significant might well be disregarded. But even accepting the answer, it is not relevant to whether the walk beat work was, at times the applicant did not do it, suitable for the applicant. One can draw from Dr McGill's evidence (and see further at Transcript p 196) that it would not be reasonable to require the applicant to do the walk beat work as described to him by Mr Jones. (At p 196 he said: "to make someone do something that actually hurts at the time, I hesitate to do that"). The applicant may well have made a "personal choice" not to do the walk beat work, but that was a reasonable choice to make.
On the basis of Dr McGill's opinions, we may find that the walk beat work was not suitable work at the point when the applicant ceased altogether do that work because of pain in his left knee.
Dr McGill is a medico-legal consultant for the respondent, and we attach weight to his opinions. We were impressed by the manner he gave his evidence, and his fairness to the applicant. We also consider that Dr McGill's evidence puts into its correct perspective the abundant evidence of the applicant's golf-playing. The applicant was quite frank in saying that he played golf and would continue to do so. It gave him enjoyment and he found it a valuable source of enjoyment. It helped him cope with life. The evidence of Dr Smith suggests that the applicant should not, from a medical point of view play golf. (Dr McGill may not take such a conservative view.) But the fact that the applicant plays golf does not establish that he could do the walk-beat work at all relevant times up to the present. That work is unsuitable because it would cause him to be in pain when he did it.
We have also attached weight to the opinion of Dr Smith. Dr Smith is an orthopaedic and trauma surgeon who treated the applicant in relation to the latter's left knee problem. His reported to the applicant's solicitors in respect of the knee on 7 April 1999 (Exhibit A3). He performed an arthroscopy on the applicant's knee on 22 May 1998. In his report he said: "There is no question that the vast majority of the physical damage to the knee has occurred over many years as described. Mr Bessey however managed quite well with his knee prior to his alteration in duties to a walking beat".
Mr Jones cross-examined Dr Smith concerning the latter's opinion that the walk beat work accelerated the poor condition of the applicant's left knee. We will return to that below. Mr Jones also questioned Dr Smith as to the latter's opinion, given the applicant's golfing, as to whether the applicant could do walk beat work for up to 2.5 hours per day (transcript p 181). Dr Smith's frank answer was: "I'm not sure. Again, its an individual question and I guess you're doing the walk beat every day". Mr Jones then asked: "But you are doing it for less time, are you not?" Dr Smith replied: "Well, that's true but I guess if you're doing it every day then there's no recovery in between". Mr Jones then pointed out that the golf was played on Saturdays. Dr Smith adhered to his opinion that the applicant's knee was "not particularly suited for walking activities" (transcript p 182). In re-examination by Mr Corr for the applicant, this exchange occurred:
Mr Corr: Yes, doctor, do you consider it unwise for Mr Bessey to play golf?
Dr Smith; Well, I would think that the best way of dealing with his arthritis is to reduce as much as possible the impact-related activities, and that applies to recreation as well as occupation.
Mr Corr: So obviously then you consider it unwise for him to spend two to two and a half hours a day, working day, walking around?
Dr Smith: I think so.
This second question was blatantly leading, and might well have been disregarded were it not clear from the rest of Dr Smith's oral evidence that he does genuinely hold that opinion. The frankness of his answers to Mr Jones also suggests that he was giving his own opinions and not simply accepting what was put to him. Dr Smith was clearly surprised that the applicant plays golf, but we gathered that that was because it was something that he did not think the applicant should do.
On the basis of Dr Smith's opinions, we may find that the walk beat work was not suitable work when the applicant did not do that work because of pain in his left knee. It was not suitable work when the applicant ceased to do the work. We note, however, that Dr Smith accepted that he "operated on the history that the applicant was managing quite well with his knee prior to the episode when he was at work" (transcript p 174). The reference to "the episode" is apparently to that on 21 April 1998. This suggests, and we find, that prior to that date the applicant was at all times able to do the walk beat and that work was suitable employment prior to that date.
We are aware that the applicant maintains that he had from commencing the walk beat work told his supervisors that his left knee would make this work unsuitable. This is not inconsistent with the finding we have just made. Given the history that the applicant gave Dr Smith, it appears that while the applicant may have had problems with walking the walk beat from February 1997, they did not reach the point that that work was unsuitable until about 21 April 1998. This is the best we can do on the evidence.
The opinion of Dr Chen does not support a finding that the walk beat work is suitable employment. It is not, however, persuasive of such a finding. The examination she made on 6 August 1997 was for the purpose of evaluating the applicant's back, not his knee. She has never made a clinical examination of his knee. In a letter (T 32) addressing the problems the applicant said he had with his knee, Dr Chen stated that the applicant had told her on 6 August 1997 that he had no knee symptoms at that time. This is consistent with what little is recorded in the report of 6 August 1997 (T 23). That records: "He reported no difficultly with walking …" . The report also states that "He informed that he is coping well with his current duties, although he does get a little sore after streeting (sic) mail". In its context, this latter statement refers to problems that the applicant had had with his back.
It is difficult to know what to make of this. It does not appear that the applicant was cross-examined on this point. It is clear that he maintains that from the outset, the walk beat work caused discomfort in the knee. It was unsatisfactory to have Dr Chen express a view about the applicant's knee without her having made a clinical examination of the applicant. In any event, we find that until he ceased the walk beat in May 1998, that work was suitable employment. Dr Chen's observations relate to August 1997.
In her examination in chief by Mr Jones, Dr Chen opined that while the walk beat work would not have made a contribution to the progress of the osteoarthritis of the knee, the applicant would experience pain while doing the work. She nevertheless thought that the applicant could do a short walk beat pushing a mail buggy. It appears then that while Dr Chen considers that the work would be painful, she thinks that the applicant could be required to do the work. We prefer the view of Dr McGill, that this is not desirable. We note too that Dr Chen has never made a clinical examination of the applicant's knee. In the end, we attach little weight to Dr Chen's view that the walk beat work is suitable employment.
We interpose here a comment on the dispute between the parties surrounding paragraph 20 of the applicant's witness statement (Exhibit A 1), a statement adopted by him in evidence. The applicant asserts that he told both Mr Pellow and Mr Andrews (both supervisors of the applicant) that he, the applicant, could not do a walk run "because of a left knee injury I have had for 20 years". He also asserts that Mr Andrews said "if you cannot do a walk beat we will have to send you home because we don't have the work for you". He affirmed this evidence in cross examination (transcript p 96). In his evidence, Mr Pellow said that the applicant never made a statement that he could not do the walk beat work because of left knee injury (transcript p 237). He denied that he had ever told the applicant that if he could not do a walk run we will have to send you home because we do not have the work for you to do (ibid). He did say: "It would have been stated that if you could not do a walk run then we did not have work for you to do then there would be nothing that we could, you know, employ him for" (ibid).
There are a number of matters here. First, this statement indicates that there must have been some discussion about whether the applicant could do the walk run. The most probable explanation of why that occurred was that the applicant had a problem with his knee (given the osteoarthritis he undoubtedly had in the knee in February 1997). Secondly, this evidence suggests, contrary to other evidence of Mr Pellow noted below, that apart from the walk beat work, Mr Pellow and others would have trouble finding work for the applicant. Thirdly, Mr Andrews was not called, and no explanation for his absence was offered. We may infer that Mr Andrews evidence would not have assisted the respondent, and we more easily accept the evidence of the applicant that he had mentioned his knee problem in February 1997; (see above, the discussion of Jones v Dunkel). It should have been clear to the respondent that it was Mr Andrews, and not Mr Pellow, who was said to have made the statement about the availability of work.
The report of Dr Griffith provides support for a finding that the walk beat work is not suitable employment for the applicant. We refer in particular to pages 7-8 of Exhibit A 2. In cross-examination, Dr Griffith accepted that the incidents of 21 April 1998 and 2 July 1998 had not produced any "major structural disruption in an already damaged joint" (transcript p 170). He also agreed with the proposition put to him that "what he may have suffered was some limited aggravation after either of those incidents involving the left knee". He was not, as were the other doctors, asked whether he considered that the walk beat work was within the applicant's capacity. It is clear from his report that he does not think it is, and the contrary was not put to him.
Dr McGrath did not express any opinion relevant to the issue we are now addressing.
The preponderance of the medical evidence supports a finding that the walk beat work was not, at the point he ceased to perform the work, suitable employment for the applicant.
was the applicant offered, and did he refuse, suitable employment at those times when he did not work his full hours?On what appears to be many days during the period he did the walk beat, the applicant did not work his full hours, and was not paid for the time he did not work. When the applicant ceased the walk beat work in May 1998, he was given other restricted duties at his place of employment, and again, until some relatively recent date, he did not work his full hours, and was not paid for the time he did not work (transcript p 43). If he had worked his full hours, he would have been paid at the level of his substantive position, and not thus entitled to compensation under section 19.
The applicant's case is, in effect, that he was not offered "suitable employment" during the times he has not worked his full hours. If he is correct, then he will presumably be re-credited with his lost sick leave entitlements, and in addition be entitled to compensation under section 19 in respect of his compensable injury to his back. The respondent's case is that in respect of those periods when he did not work his full hours, he was offered "suitable employment".
The evidence on this issue is far from clear, and we have found it difficult to resolve.
The respondent's witness, Mr Pellow, says that "[a]t no time has Mr Bessey been sent home from work due to lack of suitable duties. … Restricted duties could be made available following completion of Mr Bessey's restricted duties" (Exhibit R 13, witness statement). In evidence in chief, Mr Pellow said that in August 1997 the applicant was offered an opportunity to make up his normal working day of 7 hours 37 minutes by commencing work at 3 am. This was at a time when the applicant was doing the walk beat. The evidence of Mr Pellow is that the applicant refused to accept this offer (transcript p 237-238). He also said that there were some 6 occasions on which the applicant refused an offer to make his full hours, although only two such incidents were mentioned specifically (transcript p 239-240). The applicant accepts that there were two occasions when he refused to take up an offer of work (Exhibit A 1, paras 48 and 49).
It is noted, however, that when giving evidence of one of these occasions, Mr Pellow said that "if there was any other work that would be able to help the other delivery staff then I would pay him out on that day up until the 7 hours" (transcript p 239). (This is presumably a mistaken reference to the 7 hours 37 minutes the applicant worked for a full day's work.) The significance in this statement is the word "if". Its use suggests that it is not the case, as Mr Pellow's witness statement suggests, and his oral evidence makes clear (transcript p 245, and 246), that further restricted duties could be made available following completion of Mr Bessey's usually assigned restricted duties. We have noted above that in evidence in chief Mr Pellow said that the applicant would have been told "if you could not do a walk run then we did not have work for you to do then there would be nothing that we could, you know, employ him for" (transcript p 237). This was, apparently, a reference to what occurred in February 1997. At the least, it refers to some time after the walk beat work commenced. As we noted, this evidence suggests that apart from the walk beat work, Mr Pellow and others would have trouble finding work for the applicant.
In cross-examination, Mr Pellow said that he "never actually told him that there was work available, but there was always work there that, you know, if he wanted to be paid full hours then he could have requested it" (transcript p 247). This again is somewhat inconsistent with evidence that on occasions Mr Pellow did offer some such work to the applicant (transcript p 239).
He was also cross-examined about whether in August 1997 the applicant was offered a 3 am starting job. We accept that it is odd that if extra work after the applicant completed his restricted duties was available, that is, at about 11 am, Mr Pellow and another supervisor would have offered the applicant extra work starting at 3 am. The evidence of Mr Pellow was that "It was just another way of offering him to do the hours that were available". If that be the fact, that is inconsistent with Mr Pellow's evidence that he never told the applicant that extra work was available. It is also somewhat improbable that a supervisor would see this as a comparable choice of options. What it suggests is that Mr Pellow could not have regularly found additional work after 11 am.
It is difficult to resolve the issue of fact as to whether the applicant was in August 1997 offered extra work starting at 3 am. The applicant is clear that he was not. Two pieces of evidence tip the balance in favour of the applicant's account. First, he was indeed losing income as a result of working less than full hours, and he does have a family to support. Secondly, the respondent has not sought to adduce evidence from Mr Andrews, the more senior supervisor who, on the respondent's theory (transcript p 97), made the offer. This is an appropriate occasion for the application of Jones v Dunkel reasoning. We may infer that evidence from Mr Andrews would not have assisted the respondent, and that we may more easily accept the applicant's version of events.
The respondent sought to buttress this with allegations put in cross-examination the applicant lacked motivation to work because he was hostile to, even at war with, the respondent. We have reviewed the cross-examination closely from this perspective. In our view, the allegations put to the applicant were very general and many were unspecified. The applicant rejected what was put. Furthermore, Mr Pellow was not invited to place any particular evidence in this respect before the Tribunal, or even to express a view. The fact that an employee is unhappy, even angry, with others at his workplace does not provide much, if any, basis on which to conclude that he had deliberately refused employment. Bearing in mind that the applicant is not in a highly paid job, and has a family to support, this is very unlikely. We do not think that what the respondent gained by this line of cross-examination provides much of relevance to the issue under consideration here, or, indeed, to any issue before the Tribunal.
We find that apart from two occasions – being those mentioned in the applicant's witness statement at paras 48 and 49 – the applicant was not offered suitable employment on all those days to date that he has not been able to complete a full day's work due to work not being available to him. We have preferred the evidence of the applicant in this respect. We note too that this finding is supported by Mr Pellow's evidence that he never told the applicant that work was available. This is evidence that the applicant's supervisor was not making an effort to offer suitable employment to the applicant.
is the applicant entitled to compensation under section 24 in respect of his back condition?We refer to the reasons in Re Curtis and Australian Postal Commission, 30 March 1995, AAT decision No 10098. They are a valuable source of information and explanation concerning the operation of section 24 of the Act, and of the role of the Guide to the assessment of the degree of permanent impairment ("the Guide").
Subsection 24(1) applies where the applicant has "an injury" that has resulted in "permanent impairment". For present purposes, we will assume that this is the case. (We appreciate that the respondent asserts that there is no relevant causal relationship.)
Thus, the issue is: what is the degree on this permanent impairment suffered by the applicant? This falls to be answered by reference to the Guide. This degree must be expressed as a percentage, and where that is less than 10%, "an amount of compensation is not payable to the employee under [section 24]" (section 24(7)).
In relation to the thoraco-lumbar spine, the assessment must be made in terms of Table 9.6 of the Guide, and, more particularly, in terms of whether the applicant has suffered more than "minor restrictions of movement", but has a "loss of less than half normal range of movement". If so, the relevant % figure is 10. Dr Griffith is of the opinion that impairment of 10% is appropriate "on the basis of current clinical findings" (Exhibit A 2, p 10), although he qualified that by saying that the contribution of the applicant's work to the total impairment of the spine is reasonabl[y] assessed [at] half the total figure, i.e., Five(5)%" (ibid p 11).
The applicant's evidence was that once he has done some stretches and loosened up, he is able to bend down and touch his toes (transcript p 205). He is also able to play 18 holes of golf regularly. His main problem following the golfing appears to be with his knee, and not his back, although we note that he apparently told Dr McGill that he has a hot bath after golf to relieve low back pain (Exhibit R 10, p 4). He also told Dr McGill that he did stretching exercise to maintain flexibility of his back. This is commendable, but it indicates that the applicant has flexibility in his back, as his oral evidence indicates. Dr McGill made a physical examination (ibid), and in a report of 26 March 1999, opined that the applicant had full range of back movement, and that there was no impairment in accordance with Table 9.6 of the Comcare Guide (Exhibit R 11).
There is little of assistance in the other medical reports. We have noted above the opinion of Dr Chen, stated after the applicant's golf-playing was drawn to her attention, that there was "not a lot wrong with his back" (above para 28), although she did not address Table 9.6. We note that Dr McGrath was apparently told by the applicant that bending forward at the waist, sitting and standing were restricted (T documents, p 98). But Dr McGrath did not address Table 9.6.
Doing the best we can on the limited medical evidence directed to the application of Table 9.6, we find that while the applicant may have "minor restrictions of movement", in his back, he does not have a "loss of less than half normal range of movement". We consider that the opinion of Dr McGill accords more closely with what we heard from the applicant concerning his physical capabilities.
Did the applicant suffer from a compensable injury to his left knee?Matter A99/44 is an application to review a decision of Mr N Williams, made on 17 July 1998 (T 58 of the second bundle). It affirmed a primary decision 1 June 1998 (T 50 of the second bundle) to reject a claim for compensation payments to the applicant under the Act in respect of an incident at the applicant's workplace on 21 April 1998.
The IRO found that "whilst the medical evidence suggests that you should not continue to perform a delivery run on foot, I am not satisfied that there is sufficient evidence to show that your employment made a material contribution to your current condition". We consider this to be a correct view.
In a report of 7 April 1999, Dr Smith opined that "[the applicant's] current situation represents an exacerbation of a pre-existing problem. This has been precipitated by the alteration of his work duties, to a walking delivery run" (Exhibit A 3). In addition, Dr Smith pointed to the progressive increase in the applicant's knee problems after the delivery van incident. Dr Smith thought that the temporal relationship between the onset of the knee problems and the commencement of the walking beat made it reasonable to establish a link between the commencement of the beat and the knee problems. He said "[t]he current status of [the applicant's] left knee is therefore at least part related to his work with Australia Post".
In cross-examination, Dr Smith accepted that he "operated on the history that the applicant was managing quite well with his knee prior to the episode when he was at work" (transcript p 174). Mr Jones pointed out to Dr Smith that the applicant had had problems with his knee playing soccer, and had eventually abandoned that sport, and that he had consulted a doctor in the early 1990s about knee problems (transcript p 175ff). Dr Smith accepted (in effect) that these matters suggested that the applicant had had problems with his knee prior to the walk beat work. At the end of the cross-examination, Dr Smith stated that "the process of gradual degeneration of the knee has certainly been a contributor" (transcript p 182). There was no attempt in the re-examination to have Dr Smith explain this statement, or to affirm the opinion stated in his report.
In his report of 1 June 1999, (Exhibit A 2), Dr Griffith attributed the condition of the applicant's left knee to a combination of the soccer and with the incident at work involving the van on 2 July 1998 (ibid p 7 and p 9). Dr Griffith thought that there had been a work-related aggravation and acceleration of the knee condition (ibid p 9).
We find that the walk beat work aggravated the disease of the left knee. The walking required was painful. However, what the applicant did in his employment did not contribute to a material degree to the aggravation of the disease in his left knee. (We refer above to our discussion of the concepts of aggravation and of "contributed to in a material degree by the employee's employment".) His knee was in very poor condition prior to the commencement of the walk beat work. The only material contribution we can discern to the pain that the applicant suffered in his knee was the long history of degeneration of the knee after the early soccer injuries. The quality of the contribution made by the work may also be gauged by the fact that the incidents of 21 April 1998, or of 2 July 1998, which were the cause of additional pain, did not preclude the applicant from golf playing shortly after those events; (see the cross-examination of Dr Smith, (transcript p 176-178)).
We do not consider that this finding is inconsistent with our view that from 21 April 1998 the walk beat was not suitable employment for the applicant. The latter is a very different question.
decisonsThe reviewable decision in matter A98/123 is set aside. In its stead, we decide that the applicant was incapacitated for work as a result of an injury to his back. He is entitled to compensation under the Act. The respondent is directed to make a calculation under section 19 in the light of our findings in relation to those times when the applicant was not offered suitable employment. The parties are at liberty to apply to the Tribunal for further directions or finding in this respect.
The reviewable decision in matter A99/44 is affirmed.
CostsWe consider this an appropriate case to order that the Respondent pay the costs of the Applicant under s 67(8) of the Act, and having regard to the terms of the General Practice Direction. In this respect, we adhere to the practice of the Tribunal whereby it may publish a decision which addresses the issues of costs even though that issue not been raised at the hearing. That the Tribunal may do so is clear from what was said by Carr J in Telstra Corporation Ltd v Barrow (1994) 19 AAR 523 at 540:
I would like to stress that nothing which I have written here should be taken as criticism of what I understand to be the normal method whereby the Tribunal publishes its decisions including decisions involving costs orders. The interests of administrative efficiency and natural justice are doubtless both well served by such a procedure in the vast majority of cases. However, occasionally a case will arise where the question of costs may fairly be a matter of contention upon which the parties would wish to be heard and are entitled to be heard. In my opinion, this was such a case. I have not overlooked the fact that counsel can always, at the conclusion of a hearing, ask for an opportunity to be heard on the question of costs. I accept that from a tactical point of view this may not always be a course which counsel would wish to take.
Although Carr J observes that there may be circumstances in which the Tribunal will be obliged by natural justice to provide an opportunity to the parties to at least comment on a proposed order as to costs, we do not think that this is such a case. Nevertheless, we also decide that the parties are at liberty to apply to the Tribunal for a variation of our order that the Respondent pay the costs of the Applicant under s 67(8) of the Act.
senior member bayneThis has been a very difficult case to manage. On the one hand, the applicant has not paid sufficient attention to the legal bases on which the applicant was making claims for compensation. That failure has probably contributed to the way the respondent dealt with those claims. But the manner of that response that was far from adequate.
I do not make the comments and criticisms that follow in order to pillory those within the respondent's organisation, or those that may have advised the respondent. My aim is to provide yet another word of encouragement to such persons when they prepare for matters that are yet to come before the Tribunal. The system of administrative review of which this Tribunal is a component cannot work properly if the kinds of practices and tactics I note below are accepted and tolerated. Before descending into detail, I will set out some context.
Parties not infrequently take the attitude that it is no business of the Tribunal until the start of a hearing - or even until some way into it - to be concerned with their case theory, or even with the evidence that they will rely upon to support their theory. This is fundamentally at odds with the function of the Tribunal and fundamentally unfair to the other parties. In Re Velovski and Telstra Corporation (1998) 26 AAR 454 at 459 I said:
The task of the Tribunal is not merely to adjudicate upon the evidence that is presented to it at a hearing. As soon as an application for review is lodged, the Tribunal has case-management tasks, and in this respect will benefit from knowledge of the ultimate facts in issue and the factual and other material relevant to a decision on the ultimate facts. Full knowledge of this material will also assist the Tribunal to attempt to settle a dispute, and to play what role it thinks desirable in the investigation of the facts; (in this last respect, see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425, per Brennan J).
(iii) the Tribunal had been informed of the existence of the document prior to time at which the relevant witness commenced to give evidence;
(b) there may be an "exceptional case" such that the Tribunal would be in breach of s 39 and natural justice if it were to rule that the claimant should have access to the document prior to the claimant giving evidence in chief.
After further consideration of Hayes in the light of the argument in this matter, I would add these elaborations to this statement so far as concerns a videotape. Once informed of the existence of the video, the Tribunal would ordinarily disclose both the existence and the contents of the video to the applicant. This is subject to at least two qualifications. First, there may be circumstances where the Tribunal might conclude that the mere disclosure of the existence of the video might inhibit the Tribunal obtaining the best evidence it might of facts in issue. Secondly, disclosure of the contents of the video would occur only after the applicant had by affidavit made a statement that sets out clearly and fully the evidence that it lay in the capacity of the applicant to give concerning her or his activities portrayed on the video.
Thus, disclosure would occur in two stages. At the first stage the applicant would, in practical terms, be informed that a video existed and of the general subject matter of the video. The information disclosed must be sufficient to have the applicant commit her or himself to a version of the events depicted on the video. There may be a need for more than one affidavit. At the second stage, which must necessarily be some time before the hearing, the contents of the video would be disclosed.
If such a procedure were followed, proposition (b) needs to be qualified. If the contents of a video are disclosed prior to the hearing, there will be no occasion for the Tribunal to consider there was an "exceptional case" such that it should deny to the applicant access to the video prior to the or him giving evidence in chief.
There are several reasons why it is fair and proper that an applicant should be informed of the existence and the contents of a video (although not necessarily at the same time).
In circumstances where the applicant is aware of the existence of the video, he or she might offer to provide a written statement of the activities that are the subject of the video, as a precursor to the respondent making a copy of the video available. Were the respondent to decline this offer, the Tribunal might feel that these steps be required.
In general, an applicant may better plan for a hearing with knowledge of the existence of a video. Her of his legal advisers will know better how long the matter may take. They can arrange for relevant medical witnesses to be ready to view the video. They may be able to procure witnesses who might give evidence to deal with the contents of the video evidence.
The applicant will have an opportunity to explore, to some extent at least, the issue of the authenticity of the video. This is a matter of some importance. In DiMichel v South Buffalo Railway Co (1992) 590 NY Supp 2d 1 at 6, the Court of Appeals for New York said: "Because films are so easily altered, there is a very real danger that deceptive tapes, inadequately authenticated, could contaminate the trial process. … Authentication of surveillance films can be a slow and painstaking process, and because of the potentially devastating effects of such evidence, it would be improper to curtail a plaintiff's efforts to do so". The Court's view was that a litigant confronted at trial with a film would be entitled to an adjournment, and "if defendants were allowed to withhold surveillance evidence until trial, personal injury trials could be routinely disrupted and delayed".
In some cases, the applicant's legal advisers might advise that the matter be discontinued, or settled on terms offered by the respondent.
In argument in this matter, the respondent suggested various ways in which the disruption to the applicant's case by the late disclosure of the video might be avoided. I have taken these into account, and also had regard to the sorts of argument I have heard in other such matters. The nature of these responses points to the unfairness that would have been visited upon the applicant if the video had been admitted.
That an applicant may provide an explanation for what appears on the video. Of course this is so, but such explanations will necessarily be suspect and attacked as self-serving. It is preferable if the explanation be corroborated. It is reasonably clear from some of the cross-examination of the respondent that the video would have revealed the applicant playing golf. If the applicant knew this, he might have sought evidence from his golfing partners, or from his wife, (as to, for example, his condition during and after the relevant game).
That an applicant could adduce relevant medical information by examining the material summonsed from the applicant's treating doctors. This is obviously unsatisfactory. The documentary evidence will often be incomplete, and will require explanation from the doctor. For example, a prescription of drugs may need to be explained. Moreover, a party should not be forced to plan its case on the run in this way.
That the need to have the medical witnesses view the film could be avoided by the device of their having the nature of the applicant's actions as revealed by the film explained to them by counsel via the telephone. This is clearly unsatisfactory. It fails to allow that language is an imprecise medium for conveying what is seen on a video tape. For example, suppose it was to put to a medical witness that the video showed the applicant 'taking a swing with a golf club'? Even if that question were to be broken down into the elements of the swing, an oral description over the telephone could not adequately convey just what the video showed. Obviously, the best evidence of what is depicted by the film is the film itself. In DiMichel, the Court said "It is only by viewing the surveillance film that plaintiffs can determine when it was made and whether the activities depicted were typical of that time or were the product of an emergency situation. Visual evidence of this kind is unique because it memorializes a particular set of conditions that can never be replicated. Only by observing the conditions as they appear on film can plaintiffs respond to possible distortions or prepare to explain seeming inconsistencies to [the fact-finder]" DiMichel, above at 7. Moreover, one might expect in many instances that the parties would not agree on just what was the appropriate description of what the video showed. The Tribunal might have its own version. A great deal of time might be taken up by the kind of procedure envisaged by the respondent.
That an applicant may seek an adjournment. This is unsatisfactory in that it leads to a much more costly exercise, both for the Tribunal (and through it, the public), and the applicant. In Re Payne and Comcare (1997) 48 ALD 733 at 742, I said:
The occurrence of these kinds of events raises obvious problems of fairness to the other party. They may easily cause disarray to the presentation of the case at the hearing. Moreover, these practices have ramifications for the efficiency with which the Tribunal can conduct its business. It is not a problem which can be solved simply by an adjournment, for that raises the issue of who bears the costs of the adjournment. If the Tribunal had power to award and determine costs, there would be much less of a problem but in respect of most of the matters it deals with, the Tribunal has no such powers. Even where it may make orders or recommendations concerning costs, (see s 66 of the Freedom of Information Act 1982 (Cth), and s 67ff of the Safety Rehabilitation and Compensation Act 1988), the Tribunal's powers are activated only if a certain kind of party succeeds. The party who is prejudiced by the introduction of new evidence or new issues will not necessarily be this kind of party. Nor is the problem necessarily solved by an offer from the party who seeks to introduce the new issue or the new evidence to pay the costs which would, as a result of an adjournment or some such step, be thrown away by the other party. Because the parties cannot call upon the Tribunal to make an order for costs, should they fail to agree on just what monetary costs will offset the affects of the introduction of the new material, the proceedings could easily become bogged down while the parties endeavour to sort this out. This brings into focus the public interest that the Tribunal proceed with its business in a timely and cost-effective way. The Tribunal also throws away costs if there is an adjournment, and its business may become clogged, to the detriment of other parties wishing to have their disputes resolved by the Tribunal.
As I pointed out in argument, the Tribunal has its own reasons for insisting that it be informed of the existence of a video; and see Re Payne at 744. The Tribunal must be informed so that it can discharge its functions. The Tribunal might, for example, address these sorts of issues:
Whether the film has any (or enough) probative value to justify its reception into evidence. It is not uncommon for the Tribunal to find, on having viewed a film, that it has little probative value. A great deal of time and money has been wasted in this way.
Whether, in the light of the film, the Tribunal needs to make any investigation of its own; (see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425, per Brennan J).
Whether there might be a need for a two stage hearing to accommodate the possibility that a number of medical witnesses might need to view the video; (although I have suggested above, and will develop below, the point that there is a means to avoid this sort of step).
Whether to make decisions about how the hearing will proceed. In this case, for example, I would not have permitted the applicant to interpose a doctor if I had been aware of the existence of the video.
Whether, if the video is not tendered in evidence, it should draw any inferences concerning the positive credibility of the applicant.
I have had regard to the interest of the respondent in the non-disclosure of the existence and the contents of the video. A video may provide evidence relevant to the ultimate issues of fact involved, (such as whether the applicant is injured, or has an incapacity for work). A video may also be strongly probative of the applicant's lack of credibility as a witness of truth. A respondent will resist disclosure on the ground that non-disclosure, combined with the applicant's knowledge that a film may exist, will encourage the applicant to give truthful evidence, thus enhancing the integrity of the fact-finding process. The value of the evidence would be reduced were the applicant able to shape or mould her or his testimony to conform to the evidence on the tape.
There is, however, a procedure that will enable the Tribunal to strike a fair balance between these competing interests. Some courts in the USA have taken account of the argument, as it was put in DiMichel, that the reason why plaintiffs seek to obtain tapes prior to trial "is to learn what evidence the defendants intend to produce at trial so that they may tailor their trial testimony accordingly. This … would greatly impair the truth-finding function of cross-examination": DiMichel, above at 6. The Court allowed that the danger identified was a real one. On the other hand, it did not wish to endorse "subterfuge and surprise" as trial strategies. It held that "[The danger] can be largely eliminated by providing that surveillance films should be turned over after a plaintiff has been deposed" (ibid).
In outline, I suggest that this procedure be followed in matters where a respondent has obtained evidence in the form of a video.
First, the respondent must inform the Tribunal of the existence of any relevant video or film. If the General Practice Direction (GPD) is applicable, as it will be unless the Tribunal makes some other direction, the time for disclosure will be, at the latest, when the Statement of Facts and Contentions is filed. If for some reason the application of the GPD has been set aside, then the relevant time will be when it is clear that the matter will proceed to a hearing. The respondent must disclose the existence of the video to the Tribunal whether or not it has made a decision to adduce the video in evidence.
Secondly, the Tribunal may choose to examine the video, to make, for example, an assessment of its potential probative value, and/or to consider whether to make its own inquiries in relation to the video. It would be desirable at this point that the Tribunal make an order under section 35 of the Administrative Appeals Tribunal Act 1975 restricting access to the Tribunal and to the respondent until the question of disclosure to the applicant was settled.
It should not be assumed that a video would have probative value. It is not uncommon for a Tribunal to find that, on viewing the video, it had little or no probative value; (see, for example, Re Prica and Comcare (1996) 44 ALD 46 at 59.). There must be a careful assessment of the probative value of what is depicted on the tape. In Orgeron v Tri-State Road Boring Inc (1983) 443 So 2d 65 at 68 the court observed: "evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and they do not reflect whether the subject is suffering pain during or after the activity". In Olivier v LeJejeune (1996) 668 So 2d 347 at 352, Johnson J said:
Discovering the truth, such as indications of pain by the plaintiff or the need for medication or rest after physical exertion, is rarely the aim of a surveillance videotape. Where the goal and job is to find damaging evidence, a great potential for abuse exists. That is, surveillance videotapes provide manifold opportunities for fabrication and misrepresentation. For instance, the injured plaintiff may be filmed picking up a large object with ease. The camera would fail to show whether the object was relatively light, or whether, afterwards, the plaintiff experienced debilitating pain and was unable to engage in further physical activities. Thus, a surveillance videotape is naturally suspect. Although videotapes are intended to give the impression of an objective reality, they are, in fact, merely a product of the point of view of the camera operator. The video camera operator can create a false impression through selectively choosing when to turn the camera on and off.
Thirdly, the Tribunal would ordinarily require the respondent to disclose the fact of the existence of the video to the applicant. If the respondent desires that the applicant not be so informed, it should provide a justification by way of an ex parte written submission, and the Tribunal should satisfy itself that the justification is made out. The question for the Tribunal is whether, in its administrative review of the respondent's decision, its task of reaching the correct or preferable decision would be impeded by the mere disclosure to the applicant of the existence of the video. Such occasions should be infrequent.
Fourthly, where the existence of the video is disclosed, the Tribunal would require the applicant to file an affidavit that sets out clearly and fully the evidence which it lies in the capacity of the applicant to give concerning the activities portrayed on the video. Where the existence of the video is not disclosed, this procedure would defeat the purpose of non-disclosure.
Fifthly, the Tribunal would then require the respondent to disclose the contents of the video to the applicant.
Finally, it would in many cases be desirable to hold a directions hearing to address the course of the hearing.
In formulating these guidelines, I have taken into account the possibility that a respondent might assert that an obligation to produce a video film must yield to the respondent's claim of legal professional privilege in respect of the film. It appears that a respondent could not make such a claim.
In Re Velovski and Telstra Corporation (1998) 26 AAR 454, I concluded that the Tribunal could require a respondent to produce material in respect of which it claimed this privilege. In the light of Robbins v Harbord (1994) 62 SASR 229, it appears that a respondent in this jurisdiction may not claim the benefit of this privilege to resist disclosure to the Tribunal or to an applicant. Adapting what was said there by King CJ to the context of the matter before the Tribunal, a decision of a respondent acting under the Safety Rehabilitation and Compensation Act 1988 in relation to a claim "is not simply a decision by a private person or corporation against whom a claim is made whether or not to admit or deny liability. It is a decision made in pursuance of a statutory function". A respondent "has the function of investigating and determining claims for compensation. [It is not] entitled in determining claims simply to consult its own interests. There must be proper grounds for rejection of a claim and they must be notified to the [applicant]". It follows that a respondent "is not a party" to a review "in the ordinary role of litigant", but is to be seen as a decision-maker "defending its decision against a person affected by the decision" (at 236). Speaking of a video, the Chief Justice said: "Its purpose was not use by a litigant in the course of litigation, but use by a statutory decision-maker in discharging its statutory function. I do not think that that purpose attracts legal professional privilege" (ibid at 237).
Many decision-makers whose decisions are subject to AAT review are obliged to investigate a claim and determine if it should be met. This is true of decision-makers under the Safety, Rehabilitation and Compensation Act1988 – see ss 69(a) and 72(a)), and under other laws such as the Veterans' Entitlements Act 1986 (Cth) – see ss 17 and 18, and the Social Security Act 1991 (Cth) – see s 1296. The High Court and the Federal Court have spoken of the role of a respondent to Tribunal proceedings in the same vein as King CJ did of the South Australian decision-maker; see, respectively, R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225, and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 366.
The reasoning in Robbins v Harbord related to a possible claim of privilege under the 'litigation' head of legal professional privilege; (cf section 119 of the Evidence Act 1995 (Cth)). That is, the respondent may have claimed the privilege against disclosure that attaches to documents that are brought into existence for the dominant purpose of submission to legal advisers for advice or for use in legal proceedings; see Esso Resources Ltd v Commissioner of Taxation (1999) HCA 67; 74 ALJR 339. (In this Tribunal, it is the common law rather than the Evidence Act that is the touchstone of the content of this privilege.) It may be arguable that the reasoning in Robbins v Harbord has no application where a respondent claims the benefit of the 'legal advice' head of the privilege; (cf section 118 of the Evidence Act).
My ruling to exclude the video also assumes that the Tribunal may exclude evidence that appears to be relevant to the issues of ultimate fact and/or to the credibility of a witness. This is an issue on which minds differ.
In Re Prica and Comcare (1996) 44 ALD 46 at 62, the Tribunal noted the argument that the Tribunal is obliged to receive and take into account any relevant evidence whenever it is adduced. The correctness of this argument is said to rest on (i) the nature of the task of the Tribunal, which is to make the correct or preferable decision on the material before the Tribunal, and (ii) the requirements of s 39 of the Administrative Appeals Tribunal Act 1975. The Tribunal continued:
These arguments raise some vexed issues. It is axiomatic that the Tribunal must decide on the material before it, but this axiom does not indicate a clear answer to the question whether the Tribunal has power under s33 of the Administrative Appeals Tribunal Act to exclude relevant evidence. Such a power could be justified on the basis that it is necessary to ensure that natural justice (and the obligation in s 39) is afforded to the other party. It might also be said that there is a public interest in discouraging parties to adduce evidence by surprise. (In this respect, it should be said that there is nothing particularly shocking in the exclusion of what might appear to be (or, clearly be) relevant and probative material. Such material is often excluded on a criminal trial in order to prevent the accused from suffering some unfairness or in order to promote some public policy (such as that criminal investigations be according to law); see Evidence Act 1995 (Cth) ss 84, 85, 86, 90 and 138. The Evidence Act provides that a court may in a civil matter exclude relevant and probative material; (see ss 84 and 138).
(To this latter point may be added references to ss 135 and 137 of the Evidence Act.
In Re Prica, the Tribunal was inclined to the view that it did have power under s 33 of the AAT Act to exclude relevant evidence. (It did, however, note some difference of opinion on the point, referring to Re Patten and Australian Telecommunications Commission (1984) 6 ALD 303; Brown v Commonwealth (Federal Court, 28 August 1986, Keely J) which is noted in Re Palsa and Australian Postal Corporation (1990) 20 ALD 407 at 416; and Re Lindsey and Australian Postal Commission (1989) 10 AAR 457 at 461).
It is my view that the Tribunal does have power to exclude relevant evidence on the ground (among possible other grounds) that its admission would lead the Tribunal to deny to a party a fair opportunity to present its case. I refer to my reasons in Re Payne and Comcare (1997) 48 ALD 733 at 742ff. In Re Chowdhary and Comcare [1998] AATA 448, I applied this reasoning to exclude evidence from a witness whose existence was notified to the Tribunal on the day of the hearing.
It may be that there are other grounds on which evidence that is notified very late in the process might be excluded. Given that the Tribunal cannot make costs orders as a sanction against breaches of its practice directions, the power to exclude evidence sought to be adduced in breach of those directions may be the only effective deterrent to such behaviour. The power of the Tribunal to determine its own procedure in s 33 of the AAT Act may carry with it an implicit authority to exclude evidence when it is not produced in accordance with relevant particular or general directions; (cf Fusco v General Motors Corporation (1993) 11 F 3d 259).
The public interest is also implicated in this debate. On the one hand, there is a public interest "in arriving at the truth" of the matters in issue; (cf Freeman v McKenzie (1988) 82 ALR 461 at 473). Compensation paid by statutory authorities such as Australia Post and Comcare is paid out of the public purse. On the other hand, the courts have recognised that "the public interest necessarily comprehends an element of justice to the individual": Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18, per Mason CJ; see too Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473 at 487 per Jacobs J and at 480 per Barwick CJ. In Quin, Mason CJ said:
What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: … (170 CLR at 18).
These comments are apposite in the present context because the grave injustice to the individual in Quin lay in the failure of the executive to hold to an undertaking it gave as to the procedure it would follow when making a decision that impacted adversely on the individual. The public interest in that undertaking being observed might have prevailed over the public interest in the executive exercising its power of decision to the full extent that it might lawfully have done so. Similarly, one might argue that the public interest in respondents in this compensation jurisdiction being able to adduce all evidence relevant to the payment of an award of compensation should yield to the public interest in seeing that applicants are treated fairly in the decision-making process.
In Re Payne, I attempted to spell out a number of considerations that might bear on a decision of the Tribunal to exclude evidence; see 48 ALD at 745. A somewhat simpler framework was stated by a USA court in McDougal v McCammon (1995) 455 SE 2d 788 at 797, where, (quoting an earlier case), the court said regard might be had to
(1) the prejudice or surprise in fact of the party against whom the evidence is to be admitted; (2) the ability of the party to cure the prejudice; (3) the bad faith or wilfulness of the party who failed to [disclose the evidence]; and (4) the practical importance of the evidence excluded.
The discussion above is also germane to another ruling on admissibility I made at the hearing.
The doctors' reportsAt the Directions Hearing held shortly before the hearing commenced, the respondent informed the Tribunal and the applicant that it proposed to adduce evidence of two more reports from its medico-legal consultants. On 28 September 1999, the day before the hearing, the Tribunal received copies of a report by one such person dated 23 September, and another report from another such person dated 27 September. The first day of the hearing was 29 September.
It is I think, self-evident that by providing these reports in this manner, the respondent denied to the applicant an opportunity to present his case. This tactic could also have disrupted the management of the matter in the three days that had been set down for the hearing. These medico-legal consultants had never examined the applicant, and in order both to examine and cross-examine them it may well have been necessary to put to them a great deal of material. Delays, and possible adjournments, would have put pressure on the applicant, whose pocket is not as deep as that of the respondent. In some cases, such pressure could force an applicant to accept terms of settlement offered by a respondent.
I certify that the 185 preceding paragraphs are a true copy of the reasons for the decision herein of the Tribunal and of Mr Peter Bayne, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 29 and 30 September, and 1 October 1999
Date of Decision 19 May 2000
Counsel for the Applicant Mr Corr
Solicitor for Applicant Howes Powrie Rowe
Counsel for the Respondent Mr Jones
Solicitor for the Respondent Hunt & Hunt
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