Ross and Comcare
[2010] AATA 928
•19 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 928
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4941
GENERAL ADMINISTRATIVE DIVISION ) Re GARNET ROSS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K S Levy RFD, and
Associate Professor J B Morley RFD, MemberDate19 November 2010
PlaceBrisbane
Decision The decision is affirmed.
................[Sgd]..............................
Senior Member
CATCHWORDS
WORKER’S COMPENSATION – Incapacity payments for applicant’s back condition 0 Consideration of the applicant’s entitlement under the Safety, Rehabilitation and Compensation Act 1988 (Cth) despite successful claim for damages under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) – Has the applicant been incapacitated from work during the relevant period – Is compensation payable in relation to the injury – Applicant not able to claim compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – Applicant not incapacitated from work during the relevant period – Applicant’s injury has been resolved – Decision under review affirmed.
The Acts Interpretation Act 1901 (Cth) s 15AA
Compensation (Commonwealth Government Employees) Act 1971 Act (Cth) ss 45, 99
Evidence Act 1995 (Cth) ss 118-199
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 19, 24, 25, 48, 124, 248
Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57
AWB Ltd v Cole (2006) 152 FCR 382
Brennan v Comcare (1994) 122 ALR 615
Clark v Ryan (1960) 103 CLR 486
Esso Australia Resources Ltd v Commissioner of Taxationof the Commonwealth of Australia (1999) 201 CLR 49
Fabre v Arenales (1992) 27 NSWLR 437
Farnaby and MRCC [2007] AATA 1792
Hazleton and Civil Aviation Safety Authority [2010] AATA 693
Ho v Powell (2001) 51 NSWLR 572
Hoyle v Telstra CorporationLtd (1997) 75 FCR 390
Jones v Dunkel (1959) 101 CLR 298
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mead v Mead [2007] HCA 25
Murray v Murray (1960) 33 ALJR 521
Phillips and Military Rehabilitation and Compensation Commission [2008] AATA 336
Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355
R v Darrington and McGauley [1980] VR 353
Graham and Military Rehabilitation and Compensation Commission [2006] AATA 286
Roads and Traffic Authority v Royal [2008] HCA 19
St Clair v Timtalla Pty Ltd Anor [2010] QSC 296
REASONS FOR DECISION
19 November 2010 Senior Member K S Levy RFD, and
Associate Professor J B Morley RFD, MemberINTRODUCTION
1. The applicant, Garnet Ross, suffered an injury to his back whilst employed by the ACT Fire Brigade, on 6 March 1983. Liability was accepted by Comcare and he received incapacity benefits as a consequence. The applicant never returned to work and was finally retired on the grounds of invalidity on 12 September 1984. Since 1984 to the present he has received fortnightly superannuation payments.
2. On 8 June 2007, Mr Ross claimed weekly incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for his back condition. An initial determination was made on 25 June 2007 which rejected the application on the basis that there was not sufficient medical evidence to support the claim for the injuries sustained on 6 March 1983. He requested a review of that decision on 10 July 2007. The original decision was affirmed following reconsideration on 3 October 2007.
ISSUES
3. The following issues have been submitted to the Tribunal for determination:
(1)Whether the applicant has an entitlement to incapacity benefits as a matter of law under the 1988 Act, despite his successful claim for damages under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”)?
(2)Whether as a matter of fact, the applicant’s back injury which was accepted in 1983, has resulted in him being “incapacitated” for work for the whole of the period from 18 October 1985 to the present time? And,
(3)Whether the applicant continues to suffer pain as a result of the injury sustained in 1983 which resulted in his retirement and, if so, whether compensation is payable for the period from October 1985 to the present time?
EVIDENCE
4. The applicant is now 64 years of age. His working history shows that from 1969 to 1975 he worked variously as an interstate transport driver, fire protection agent, taxi driver, and also undertook work as a sales representative. On 26 September 1975 he joined the ACT Fire Service. Whilst in that service, it appears that he suffered injuries in 1976, 1978, 1979, 1979 and 1983 all of which resulted in workers compensation claims being made. In 1976 he collapsed at work after doing heavy lifting. In 1978 he sustained an injury to his lower back in the Tuggeranong Valley when he slipped on rocks and fell, resulting in four days absence. He was compensated under the 1971 Act for “left sciatica”. In 1979 he received another injury in the Mowson fire when a knapsack was dropped onto his back. He again was compensated under the 1971 Act for an injury to his lower back and was unable to work for approximately four days. On 6 March 1983 he again received an injury to his lower back when he fell off a chair in the fireman’s mess room. He never returned to work again and was retired on invalidity grounds on 12 September 1984. He subsequently successfully lodged a claim for common law damages and was granted an award of $200,000 plus costs “on or around 18 October 1985” (T21/54). As part of that settlement he was required to repay $39,977.19 under s 99(3) of the 1971 Act.
Employment since 1983
5. The applicant purchased a business “Sunseeker Tours” in 1986. That was operated with his two children. He undertook some driving himself but told the Tribunal that he could only drive for one hour at a time and that within a short amount of time he had to employ drivers to drive the buses for him. He did a little administration work for the business but most of that was undertaken by his daughter. The business failed after three years. His evidence was that he was not an employee and did not receive any income from it.
6. Mr Ross stated that he has continued to have a reasonable amount of pain ever since the accident on 6 March 1983. In cross examination, he told Mr Clark, counsel for the respondent, that he had never inquired about rehabilitation since his retirement from the ACT Fire Service. After the Sunseeker Tours business failed, he undertook work as a Security Officer.
7. The applicant was then asked about information contained in his tax returns lodged between 1990 and 2000. In 1990, his tax return shows salaries paid amounting to $37,384 (in relation to which the applicant says that he never paid himself a salary) and that the business lost $25,500. In the 1991 tax returns, he claims a net loss for the year of $9,522. His 1992 taxation return shows that his income was $89 for this employment. Apart from his superannuation benefits, he claims a loss of $7,968 for the year from business activities. In the 1993 taxation return he claims a loss of $13,960 for the year. His occupation at the time is shown as Security Officer. In the 1994 taxation return, his occupation is shown as Transport Driver and has a net loss for the year of $6,052. In the taxation return for the 1995 financial year, he does not disclose an occupation but claims a loss for the year of $6,279. In the 1996 taxation return, Mr Ross declares his occupation as Motor Vehicle Pilot. His net loss from business activities in that year was $4,853. In the 1997 taxation return the description of his business activity is again Motor Vehicle Pilot and declares a business loss for that year of $2,966. In the 1998 year no business income was declared in his taxation return for that year. In 1999, his income return shows that he commenced another business “Dance Studio” that had the business name of “Twist & Shout Rock & Roll”. Counsel drew his attention to his claiming a business loss of $14,685 for that year which included motor vehicle expenses (lease payments) of $16,198. In the income tax return for the year 2000 he again claimed a business loss of $7,745 after claiming deductions of $8,388 for motor vehicle expenses and “other expenses” (apart from rent) and depreciation of $8,550.
8. There was also evidence indicating that he had been self employed as a welder. When asked about his welding ability, the applicant replied that while he had skills as a welder, he has no qualifications or “ticket” to work in that capacity. The Tribunal also noted that in the applicant’s statement dated 25 January 2008 he stated that “After the business failed, I had no capacity, either financial or otherwise, to try and establish any other form of business” (paragraph 17). He also stated that “I have not undertaken on any employment since I was medically retired from the ACT Fire Brigade” (paragraph 12).
Medical Evidence
9. There was substantial written medical evidence provided to the Tribunal. Some of that evidence predates the injury which is the subject of the present claim. There is also substantial evidence from Doctors with whom the applicant consulted in the two years or so after the accident. Dr Reading, the applicant’s general practitioner on 18 April 1983, stated that Mr Ross had pain in his back consistent with the injury that he described as occurring at work and which “certainly could have exacerbated a previous back problem” (ST55/139). On 7 July 1983, Dr Geoffrey Stubbs, an orthopaedic surgeon considered the result of a CAT scan and said that there was no distinct disc prolapse of an intervertebral disc, but there was evidence at L5/S1, of disc space narrowing together with posterior osteophytic formation from the inferior margin of the L5 intervertebral body. Dr Farnbach had a different view and opined that it was “not as bad as he states” (ST72/163). But at ST81/177, Dr Stubbs considered that there was a causal relationship between the disability with which he presented at that time and the fall he described at work.
10. Approximately 10 months later he saw Dr Danta, a neurologist. He told Dr Danta that he had had only one episode of back ache in 1976 or 1978. He then described the fall in March 1983 and said that he had landed on his buttocks. We note that that seems to be a somewhat different account to that made by Mr Buckley in his witness statement (ST80/175). Dr Danta thought that “it is not unlikely that he disrupted the lumbo-sacral disc at the time of the fall…” (ST83/181).
11. On 28 June 1984, a report was provided by a Dr Newcombe. At ST87/186 Dr Newcombe examined x-rays from 8 April 1983 and thought that they revealed a lumbar spondylosis at L4/5 and L5/S1 disc space narrowing as well as some osteophytic formation in the intervertable canals.
12. Mr Ross was also examined by Dr Nadana Chandran, a neurosurgeon. He provided a report dated 27 November 1984 addressed to the Australian Government Solicitor. This report seems to be somewhat cynical of the claimed pain and the clinical symptoms. We have noted that the applicant had denied previous injuries. At that time he was reminded of the injuries in 1978 and 1979 but Mr Ross apparently stated that he was able to continue in his normal activities until the incident of March 1983. Dr Chandran also noted that the x-rays taken soon after the injury in March 1983 “…revealed the presence marked narrowing of the L5/S1 disc and a slight narrowing of the disc above, indicating the presence of an underlying degenerative condition, probably going on for a few years, precipitated perhaps by minor injuries. The earlier injuries of 1978 and 1979 were minor, settling down fairly quickly and are probably not the contributory factors to this degeneration.” Dr Chandran concluded that Mr Ross was not fit to work as a Fire Brigade Officer and at that time thought that he was not fit to undertake any work. He clearly was of the view that Mr Ross would not return to the work that he had formally undertaken in the Fire Brigade. He noted however that there was a pre-existing degenerative change in the lumbar spine.
13. Another report on 27 November 1984 was provided to the Australian Government Solicitor by Dr Edwin J Cassar. Similarly to Dr Chandran, he concluded that the L5/S1 disc prolapse was unlikely to have been caused by the accident on 6 March 1983. He regarded the injuries which Mr Ross had as being temporary only and that they should have stabilised within some weeks.
14. Dr John Corry, a specialist in rehabilitation medicine provided a report to Pamela Coward and Associate Solicitors in Canberra on 14 August 1985. This report was presumably initiated by the applicant’s then solicitors. Dr Corry states that “symptoms appear to have been precipitated by the fall described as occurring on the 6.3.83. The description of the fall was such that he would have sustained a compressive force through his spine. It is most unusual for such type of injury to cause disc damage in the absence of degenerative disc change”. Dr Corry also noted and described Mr Ross at that time “as having fairly severe psychological disturbance …”.
15. A report dated 23 May 2007 was also provided by Dr Brian Purssey, a specialist in general surgery and orthopaedics. Dr Purssey described his status as having been retired for eight years. Dr Purssey concluded that Mr Ross was now unemployable as a Fireman (T18/50) but referred to the lower back pain being due to soft tissue injury to the lumbar spine with an aggravation of a degenerative condition also of the lumbar spine (T18/49).
16. A report has also been provided by orthopaedic surgeon, Dr Steadman, dated 29 December 2008. This report was commissioned by the respondent. Dr Steadman’s report refers to the applicant being unable to recall earlier injuries from the late 1970s and in relation to employment undertaken, he denied undertaking work except when reminded by Dr Steadman who had been briefed with relevant information by the respondent’s solicitors. Dr Steadman concluded that the injury in 1983 may, at worst, be a disc derangement. He said that such an injury would heal or recover within 10 years (at the most) and that the present affects experienced by Mr Ross must be seen to be related to a degenerative back condition.
17. Under cross-examination by Mr Klevansky, Dr Steadman described the effect of injury on disc derangement, but said that if a change to two or more disc levels occurred, then the spinal problem is more difficult and will be regarded as being attributable to degenerative conditions.
18. He agreed with Counsel for the applicant that the cause of the applicant’s back condition has been progressive, but it is not clear that one of the injuries (either from the late 1970s or the early 1980s) can be attributed to the back condition, particularly after such a long period of time. Dr Steadman said that it was generally accepted in orthopaedic medical circles that a single level intervertebral disc injury can repair sufficiently enough to recover over 10 years (10 years being indicative rather than exact), that is, it stabilises over a period and does not result in a person being immobilised because of such an injury. He did say that an aggravation caused by an injury may accelerate a degenerative disc disease process. In explaining his opinion, he said that that view would be applicable to most of the population with a 95 percent confidence interval and that only a small percentage outside the bell curve would be an exception to that.
CONSIDERATION
19. In arriving at a determination of the issues before this Tribunal, we have taken into account all of the medical and factual evidence including the history and pattern revealed by the various medical experts, as well as the business dealings of the applicant and his responses to the respondent’s propositions.
Findings of Fact
20. We make the following findings of fact taking account of the whole of the evidence and the weight of the evidence of the applicant as well as the various experts.
(1)The applicant suffered a back injury in 1983 while working for the ACT Fire Service.
(2)Mr Ross has a degenerative condition of the lumbar spine which pre‑dated the injury in 1983.
(3)The effects of the injury of 6 March 1983 must reasonably be taken to have recovered by early to mid 1993.
(4)The applicant is not accepted as a witness of complete truth and reliability.
(5)Mr Ross has undertaken a number of businesses over the years and has a demonstrated capacity to work.
The Law Governing the Issues in Dispute
COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 1971 – SECT 99
(1)If –
(a) an employee recovers damages from the Commonwealth or from any other person in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or
…
(3)Subject to this section, if, before the recovery of the damages by or for the benefit of the employee or dependant, any compensation under this Act was paid to the employee in respect of the injury, loss or damage or for the benefit of the dependant in respect of the injury that resulted in the death, as the case may be, the employee or dependant is liable to pay to the Commonwealth the amount of the compensation so paid to him or for his benefit or, if the amount of the damages recovered by him or for his benefit is less than the amount of that compensation, the amount of those damages.
…
(7)If, before the recovery of the damages by or for the benefit of the employee or dependant, an amount of compensation under this Act was paid to the employee in respect of the injury, loss or damage or for the benefit of the dependant in respect of the injury that resulted in the death, as the case may be, the employee or dependant is liable to pay to the Commonwealth so much of that amount as would not, by reason of the last two preceding sub-sections, have been paid if that amount had become payable immediately after the damages were recovered.
SAFETY, REHABILITATION AND COMPENSATION ACT 1988 - SECT 4
Interpretation
(9)A reference in this Act to an 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 or a licensed corporation in that work or any other work immediately before the injury happened.
SAFETY, REHABILITATION AND COMPENSATION ACT 1988 - SECT 5
Employees
(9)A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.
SAFETY, REHABILITATION AND COMPENSATION ACT 1988 - SECT 19
Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…
(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:
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
SAFETY, REHABILITATION AND COMPENSATION ACT 1988 - SECT 48
Compensation not payable where damages recovered
(3)If, before the recovery of the damages by, or for the benefit of, the employee or dependant, any compensation under this Act was paid to, or for the benefit of, the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, as the case may be, the employee or dependant is liable to pay to Comcare an amount equal to:
(a) the amount of that compensation; or
(b) the amount of the damages;
whichever is less.
(4)Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be.
…
(8)Subsections (3) and (4) do not apply where the damages are recovered on or after the commencement of this section in respect of a claim for damages made before that day (whether or not legal proceedings were instituted) but section 99 (other than subsection 99(1)) of the 1971 Act, as in force immediately before that day, continues to apply as if:
(a)references in that section to the Commonwealth were references to Comcare;
(b)references in that section to the Commissioner were references to Comcare;
(c)references in that section to compensation payable under the 1971 Act were references to compensation payable under this Act; and
(d)the reference in subsection 99(9) to subsection 43(5) or (7) of the 1971 Act were a reference to subsection 17(5) of this Act.
SAFETY, REHABILITATION AND COMPENSATION ACT 1988 - SECT 124
Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
…
(3)A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii)in any other case—under the 1971 Act as in force when the impairment or death occurred.
…
(7) The rate of compensation (if any) that a person is, by virtue of this section, entitled to receive under subsection 17(5) in respect of the death of an employee, or under section 19, 20, 21, 22 or 31 in respect of an incapacity, where the compensation relates to a period occurring before the commencing day, shall be the same as the rate of compensation that would have been payable to that person in relation to that period, if this Act had not been enacted, under:
(a) where the period occurred before the commencement of the 1930 Act—the 1912 Act;
(b)where the period occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—the 1930 Act as in force during the period; or
(c)in any other case—the 1971 Act as in force during the period.
…
(11)Section 48 does not apply where the damages referred to in that section were recovered before the commencing day.
Issue 1
21. It is clear that the 1971 Act has been repealed and replaced by the 1988 Act. The 1971 Act in s 99(3) required the repayment of statutory compensation paid to an employee before the recovery of damages from the Commonwealth, where the amount of damages was more than the compensation paid. In the 1988 Act, there is a provision in s 48(3) which requires the employee to repay the amount of compensation or damages, whichever is the lesser. This provision under the 1988 Act is similar to s 99(3) of the 1971 Act.
22. Section 124 of the 1988 Act is one of the “transitional provisions” and deals with the application of that Act to injuries suffered before the commencement of that Act. Section 124(11) states that s 48 of the 1988 Act does not apply where damages referred to in that section were recovered before the commencing day.
23. Counsel for the applicant has argued that the provisions of the 1971 Act do not preclude a successful claim under the 1988 Act in respect of payments made after 1 December 1988, the commencing date of the 1988 Act. In support of that argument the applicant refers s 48 of the 1988 Act to Phillips and Military Rehabilitation and Compensation Commission [2008] AATA 336 where, in referring to the application of s 48 to that case, Deputy President The Honourable B H McPherson and Senior Member Ms M J Carstairs said,
… The reason is s 124(11) of the 1988 Act states quite explicitly that s 48 ‘does not apply to damages referred to in that section which were recovered before the commencing day’ of 1 December 1988 (at paragraph 36).
24. Counsel for the applicant relies also on s 124(7) to establish the proposition that entitlement to compensation prior to 1988 should be calculated pursuant to the 1971 Act and that any incapacity during the currency of the 1988 Act should be calculated pursuant to the 1988 Act (s 124(1A)). As a result, the applicant’s case is that s 124(11) of the 1988 Act applies to Mr Ross.
25. Counsel for the respondent does not dispute that s 48 does not apply and that no further statutory compensation is payable but that s 124(11) in effect will revive rights existing prior to 1 December 1988 and allow further statutory compensation where common law damages have been recovered. The Tribunal was referred to Hoyle v Telstra Corporation Ltd (1997) 75 FCR 390 at 394. In that case, the Court emphasised that “the appropriate general principle should be that an employee is not to be deprived of any compensation that would have been payable under the 1971 Act but for its repeal, but is not entitled to any greater compensation than would have been payable under that Act” at [394]. We note also that the Court held “that an employee whose entitlement has a nexus with a period before the commencing day is not intended to be in a better position in respect of permanent impairment simply because of the enactment of the Compensation Act and the repeal of the 1971 Act” at [398].
26. The respondent’s case is that the parties had previously confined the issues to the “incapacity” of Mr Ross for work under s 45 of the 1971 Act and s 19 of the 1988 Act. The respondent argues that there is an entitlement under s 19 of the 1988 Act, calculated according to the 1971 Act (prior to 1 December 1988). The respondent says, however, that as the applicant has recovered more in damages than what he could recover in incapacity payments, he is precluded from succeeding in this case in any event (s 124(1A) and s 124(7)).
27. In considering the point in dispute between the parties, the correct statutory interpretation of the statutory scheme which is relevant here must be viewed using a purposive approach. This is required by s 15AA of the Acts Interpretation Act 1901 (Cth). This approach has been emphasised by the High Court of Australia (see for example, Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 at 381) and continues to reinforce the supremacy of interpreting statutory provisions in the context of the statute as a whole (Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57).
28. The purposive approach gives context in some circumstances by reference to extrinsic material. In the second reading speech where debate was had on the Bill which has now become the 1988 Act, the (then) Minister for Social Security told Parliament that the objectives of the Bill were to “minimise the human and financial cost of work caused injury” (p 2191 Hansard, 27 April 1988). The new Act changed the former “system of fixed long term benefits adjusted by regulation” (p 2191 Hansard, 27 April 1988). It modified the financial entitlements and durations of long term benefits and established a new statutory authority, the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees which would “… have much broader powers in relation to the provision of rehabilitation programs than were previously available. The Minister stated “… the most controversial aspect of the new legislation is that common law actions against the Commonwealth will be replaced …”. The purpose of the Bill was also “… reduce the unreasonable costs associated with work-related injuries by introducing measures to prevent double dipping by employees using sick leave payments or superannuation entitlements while on compensation” (p 2194 Hansard, 27 April 1988).
29. The application of the purposive approach is important in determining this issue in dispute. As put clearly by Gummow J in Brennan v Comcare (1994) 122 ALR 615, His Honour said that the 1988 Act creates new rights in “substitution” for the former rights of persons who would otherwise have had a right expunged when the 1971 Act was repealed (see pp 623-624). A person’s former rights under the 1971 Act are revived by s 124 of the 1988 Act and to the extent listed therein. Section 99 of the 1971 Act required repayment of an amount where damages are recovered by an employee/former employee after compensation has been paid by the Commonwealth. Under the 1988 Act, s 48 serves the same purpose.
30. Using the purposive approach, the context of the legislation demonstrates it was intended that a person cannot be compensated twice by taking advantage of the provisions under the 1971 Act and then subsequently, being compensated under the 1988 Act for the same injuries, subject to one minor exception. In particular:
(a)Section 48(3) of the 1988 Act mirrors s 99(3) of the 1971 Act in that repayment of Commonwealth compensation is required where damages are subsequently received;
(b)It is declared that compensation is not payable after damages are recovered (s 48(4)) but this applies only to a claim made under the 1988 Act;
(c)Where a claim was made before the 1971 Act was repealed and damages are recovered after the commencement of the 1988 Act, the claim will be resolved by applying s 99 of the 1971 Act as if those provisions were part of the scheme of the 1988 Act (s 48(8));
(d)The transitional provisions under s 48 do not apply where damages referred to in that section were received before the commencement of the 1988 Act (s 124(11));
(e)There is no entitlement to compensation under ss 24 or 25 of the 1988 Act where an impairment occurred before the commencing date of that Act and the applicant either received lump sum compensation under the 1971 Act or has no entitlement to compensation under the 1971 Act (s 124(3));
(f)Similarly to (d) above, there is no entitlement to compensation under s 19 of the 1988 Act in respect of incapacity (s 124(6));
(g)There is an entitlement to compensation for an injury that occurred before 1 December 1988 if the compensation was, or would have been payable to the person under the 1971 Act (s 124(1A); and where that entitlement exists, the amount is limited to the rate of compensation applicable under the 1971 Act (s 124(7)).
31. Mr Ross was compensated under the 1971 Act for the injuries claimed in 1976, 1979 and 1983. For the 1983 injury, he was compensated initially but repaid the amount after receiving the damages payout, as required by the statutory requirement in s 99(3) of the 1971 Act.
32. The transitional provisions under s 124 of the 1988 Act were enacted to prevent unfairness or undue hardship which would otherwise result from a repeal of the 1971 Act. It is clear however that under the 1971 and 1988 Acts, an applicant cannot recover statutory compensation and in addition, recover common law damages for the same injury except:
(a)the amount of compensation which “… exceeds the amount of the damages recovered by the employee …”; (s 99(2) of 1971 Act);
(b)the amount of compensation in respect of an injury suffered before 1 December 1988 (i.e. during the currency of the 1971 Act) but claimed after 1 December 1988 (i.e. during the currency of the 1988 Act) (s 124(1A) of 1988 Act);
(c)where (b) above applies, the rate of compensation payable is that under s 124(7).
33. In our view, on the proper construction of these provisions, the submissions made by the applicant about the non applicability of the claw-back provision and the entitlement of the applicant to compensation is not sustainable based on the statutory provisions above and because s 124(1A) has two limitations in its application to Mr Ross. Firstly, the words “subject to this part” requires taking cognizance of the other provisions of s 124 and any other relevant provision in Part X. Essentially, s 124(11) provides that s 48 does not apply where damages referred to in that section were recovered before the commencing day. The circumstances of s 48(8) are not satisfied (as damages were recovered before commencement of the section) and therefore s 48(4) applies and compensation is not payable after damages were recovered. Secondly, significance is to be placed on the words in s 124(1A) of the 1988 Act which refers to compensation that “was or would have been payable” in respect of pre-existing injuries at the commencement of the 1988 Act. The adjective “payable” means “owed; to be paid; due” (see The Concise Macquarie Dictionary, revised edition, 1986). That is differentiated from the applicant’s position where he has already succeeded in a claim and in fact has been paid under the 1971 Act. Therefore, as it has been paid, the claim is completed and is no longer payable. The applicant’s reliance on Graham and Military Rehabilitation and Compensation Commission [2006] AATA 286 and factors in s 19 are not of assistance. We therefore find that the applicant is precluded from recovering afresh in respect of his 1983 injury under the provisions of the 1988 Act.
34. There is some merit in the complementary argument of the respondent that Mr Ross may have been entitled to further compensation under s 99 of the 1971 Act if he can demonstrate that any entitlement to incapacity payments exceed the amount of damages recovered. Such an amount is to be assessed under the 1971 Act (s 124(1A) and 124(7)). The respondent says that the applicant cannot recover because there would be an entitlement to $137,178.73 but he has already recovered in excess of that amount ($160,022.81). In final oral submissions on 21 October 2010, counsel for the applicant argued that the amount of entitlement would be $160,000 (approximately).
35. While we agree with the respondent’s submission that there may be a notional entitlement to $137,178.73 (the criterion amount), with respect, we are not satisfied that the comparison amount of $160,022.81 is correct. In our view, the correct comparison amount is $200,000. That is because that is the net amount that was actually received. The applicant received compensation payments of $39,977.19 and damages of $200,000, making a total of $239,977.19 actually received. Of course, Mr Ross was required to refund the compensation payments of $39,977.19. Therefore, a net amount of $200,000 damages was received and is the comparison amount to be used when considering whether any incapacity payment exceeds the criterion amount. Whether the amounts submitted by the applicant or the respondent are adopted, neither figure exceeds the comparison amount of $200,000. Unfortunately, the applicant cannot succeed on this basis.
Issues 2 and 3
36. Apart from our conclusion to issue 1, we find that Mr Ross also cannot succeed because of our findings in relation to issues 2 and 3. Both of these issues must be determined having regard to the medical evidence.
37. Issue 2 is concerned with whether the applicant has been incapacitated for work from October 1985 to the present time. Therefore, relevant medical and other evidence must be considered to make a determination in relation to this issue.
38. We note the medical evidence from the time of injury to 18 October 1985. There were a number of medical experts who endeavoured to make a realistic assessment based on Mr Ross’ presentations to them from 1983 to 1985. In particular, the applicant submits that reliance should be placed on Dr Ray Henderson’s opinion who saw Mr Ross four times shortly after his accident before he could attend Dr Henderson’s clinic for a full examination. Mr Ross again consulted Dr Henderson in 2007.
39. Dr Purssey’s evidence is also urged upon us by the applicant as correctly representing his condition. The respondent argues that the applicant’s case cannot be supported because:
(1)There is no contemporaneous evidence to demonstrate that Mr Ross was incapacitated for work beyond 18 October 1985;
(2)No evidence of medical expenses or other compensable sequela with respect to the injury has been provided; and,
(3)The applicant was examined by Dr Morgan, orthopaedic specialist at the instigation of the applicant’s lawyers. The respondent says that is highly relevant as the applicant has claimed legal professional privilege over the report (Farnaby and MRCC [2007] AATA 1792).
40. With respect to the evidence of medical expenses, there was no evidence expressly covering this issue from October 1985 to the present. In relation to the failure to disclose Dr Morgan’s evidence, the respondent argued that the principle formulated in Jones v Dunkel (1959) 101 CLR 298 should be used to determine whether inferences should be drawn in relation to the facts in issue.
41. The unwillingness to disclose Dr Morgan’s opinion based on legal professional privilege is curious. Such privilege must rely on confidential communication between a lawyer and client in their “professional relationship” and must be for a privileged purpose which was dominant (ss 118-199 Evidence Act 1995 (Cth); Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 at 72). This privilege quarantines the communication, not the document per se [AWB Ltd v Cole (2006) 152 FCR 382 at 417]. Privilege is often used to protect a party from exposure to criminal or civil penalties. Here, the applicant seeks to use the privilege but is not exposed to any potential civil or criminal penalty.
42. The rule in Jones v Dunkel involves three aspects and was succinctly stated by Menzies J at [312] as thus:
(i)that the absence of the defendant … as a witness cannot be used to make up any deficiency of evidence;
(ii)that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence;
(iii)that where an inference is open from fact proved by direct evidence and the question is whether it should be drawn, the circumstances that the defendant disputing it might have proved to the contrary had he chosen to give evidence is properly to taken into account as a circumstance in favour of drawing the inference”.
43. As Heydon JD in Cross in Evidence, 8th Australian Edition 2010 cites from Fabre v Arenales (1992) 27 NSWLR 437 at 449-450 “… a Jones v Dunkel inference may not arise if, for example, the witness has a reason for not telling the truth or refusing to assist and the party who may well call him is aware of this” (see p40 paragraph 1215 of Cross on Evidence). The rule applies to parties whether or not they bear an onus of proof (Ho v Powell (2001) 51 NSWLR 572 at [16]). There is nothing in the facts of this case however, that would suggest that such an inference does not arise.
44. Here, the fact that the opinion of Dr Morgan was sought by the applicant’s solicitors and was not referred to or explained by the applicant in the context of the principle in Jones and Dunkel, is a matter we may take into account. But based on facts proved, these must form a reasonable basis to conclusively draw an inference. (Jones v Dunkel (1959) 101 CLR 298 at 305 per Dixon CJ; Roads and Traffic Authority v Royal [2008] HCA 19). We must ask, given the evidence as a whole, whether there is some reasonable circumstance in the evidence given by the applicant that an inference adverse to the applicant may be drawn about evidence which he might have given in response to an issue, but chosen not to [Mead v Mead [2007] HCA 25 at [13]. We conclude that an adverse inference can justifiably be drawn against Mr Ross in relation to this aspect of his evidence in this case (St Clair v Timtalla Pty Ltd Anor [2010] QSC 296). Any evidence which Dr Morgan may have given was not raised by the applicant in the course of the hearing, nor was this proposition which was raised by the respondent, answered in any way by the applicant.
45. There is also evidence which complements the drawing of an adverse inference against the applicant. There have been numerous incidents of evasiveness in Mr Ross’s present testimony or a pattern of behaviour which indicates a motivation not to fully disclose some evidence when convenient to him. For example, the evidence available from his taxation returns makes us conclude that on the balance of probabilities, the evidence does not support the applicant’s contentions that he was incapacitated for work from 1985 to the present time. The evidence of Mr Ross’ own annual taxation returns revealed that he had many businesses from 1986 to 2000 and he declared losses in most of those years. Both the content of Mr Ross’ oral evidence as well as his demeanour resulted in us forming a firm view that he was not completely frank about his business dealings over the years and we note that Dr Steadman had a similar experience when interviewing him. His credibility has been significantly diminished as has the weight of some of his evidence.
46. The principles listed above from Menzies J in Jones v Dunkel have been considered. It can also be considered justifiable where the failure to provide evidence could rationally lead to a conclusion or inference that the evidence of that person would not have assisted the party’s case (per Windeyer J). These considerations are also relevant to the requirement of the standard of proof of the applicant in s 140 (2) of the Evidence Act 1995 (Cth). This refers to the essential considerations of the nature of the cause of action and the gravity of the matters involved. This standard also requires the tribunal to be actually persuaded in the affirmative and not to undertake a mere comparison of probabilities: Murray v Murray (1960) 33 ALJR 521 per Dixon CJ. We have undertaken our considerations based on these principles and find that Mr Ross was not incapacitated for work for the whole of the period since his retirement.
47. Issue 3 is whether there has been a continuation of the injury since March 1983 such that Mr Ross had a continuing incapacity for work from that time to the present and which is attributable to that injury.
48. The applicant’s case relies on the opinions of Dr John Matson, chiropractor (2006), Dr Ray Henderson (1986 and 2007) and Dr Purssey (2007). The respondent submits that Dr Steadman’s opinion is more efficacious. We also note the applicant’s submission in particular that Dr Steadman’s opinion that the back injury would have resolved after 10 years is not supported by “evidence based medicine” (paragraph 8 of the applicant’s reply to respondent’s submissions).
49. The evidence here contains a larger number of older opinions closer to the date of the accident in the 1980s. There, Dr Stubbs, orthopaedic surgeon said “I believe the prognosis must be somewhat guarded”. Dr Danta (neurologist) said “I think the prognosis is poor…” (paragraphs 3 and 4 of the applicant’s reply to the respondent’s submissions). Each of these reports provides a professional “prognosis” in the face of uncertainty. “’Prognosis’ means forecasting the probable causes and termination of a disease” (The Concise Macquarie Dictionary, revised edition, 1986).
50. As against those opinions, a more contemporary assessment by Dr Steadman has been provided on behalf of the respondent.
51. The applicant relies predominately on the evidence of Dr Purssey and submits that his opinion should be accepted. The respondent argues that Dr Purssey’s opinions were not formed from his own experience but from his interpretation of the research of others in the field. This is based on criticism of Dr Purssey in another case before the Administrative Appeals Tribunal and also because he was a general surgeon and not an orthopaedic surgeon.
52. Whatever criticism may have been made in another case, Dr Purssey’s evidence in this case appeared to be limited to the information available to him from Mr Ross. We did not place less weight on Dr Purssey’s evidence because he had been retired for some years, but rather, we acknowledged that he had been in medical practice for some 45-50 years and as a general surgeon, was regarded as a person still with specialist knowledge to provide an expert opinion.
53. Despite our view about the acceptability of Dr Purssey as an expert, we nevertheless preferred the evidence of Dr Steadman. He was an orthopaedic surgeon who saw Mr Ross relatively recently. He had a full medical and work history of the applicant which does not appear to have been part of the brief provided to Dr Purssey.
54. Of critical relevance is that Dr Steadman concluded that Mr Ross has a degenerative condition of lumbar spondylosis and that the injury to his back in falling off a chair in 1983 would have resolved, at the latest, by March 1993 (approximately). The residual pain and disability therefore, according to Dr Steadman, is attributable to lumbar spondylosis – a constitutionally based degenerative condition.
55. While the applicant argues that Dr Steadman’s evidence is not an “evidence based medicine” approach (from Dr Steadman’s own evidence), that is not a mandatory requirement for a Court or Tribunal to accept expert evidence. But there must be evidence which a Tribunal of fact would not be expected to have by ordinary human experience. It must also be evidence which is derived from a body of knowledge and which requires a special course of study (Clark v Ryan (1960) 103 CLR 486). An expert must be proved in the sense that we must be satisfied of the expert’s formal qualifications and professional experience. We were satisfied that all of those criteria were met in relation to Dr Steadman.
56. Of course, experts must stay within their area of expertise (R v Darrington and McGauley [1980] VR 353.) An expert may be discredited in cross examination where Counsel can raise doubts about the facts upon which an expert bases his or her opinion. Given Dr Steadman’s qualifications and experience, we have accepted that his explanation is based on his professional knowledge and skills. That is a necessary requirement (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 744 (see Heydon JA)). We were also satisfied that Dr Steadman’s knowledge and experience as well as his currency with the state of knowledge with orthopaedic medicine was such that his opinion about Mr Ross’ general pattern of recovery from the injury was not in any way discredited in cross examination .
57. Returning to the applicant’s assertion that Dr Steadman’s opinion should not be accepted as it is not evidence based medicine, we accept the definition of evidence based medicine as formulated by Sackett et al as "the integration of best research evidence with clinical expertise and patient values." (Sackett DL, Richardson WS, Rosenberg W, Haynes RB, Evidence-Based Medicine. How to Practise and Teach EBM (2nd ed, Churchill Livingstone, Edinburgh and New York, 2000)).
58. That definition was adopted recently in Hazelton and Civil Aviation Safety Authority [2010] AATA 693, a case requiring a determination by the Tribunal of whether there was an acceptable current epilepsy risk for a pilot to resume flying aircraft "with or as co-pilot". It was noted that the existing or available body of scientific literature, on its own, did not provide sufficient data to enable a determination to be made, from evidence based medicine. In so doing, the Tribunal was cognizant of the evidence received from an American independent expert neurologist who regarded the definition of evidence based medicine as "the best available literature combined with clinical expertise", and not the literature alone (para 187, p 52).
59. We agree with that definition and adopt it here as a working definition for the purposes of making a determination of the issues here. The crucial point is that when the best available research evidence is inadequate, a court or tribunal must turn to clinical expertise; and, when that is necessary, the tribunal should require this also to be the best available clinical expertise. And so it is in this case that we accept Dr Steadman’s opinion as the best available clinical expertise in explaining the course of Mr Ross’ back pain. In the circumstances therefore, we find that the evidence shows that the residual back pain is not attributable to the injury which Mr Ross experienced in March 1983 and that injury, a soft tissue injury, would have resolved by March 1993 (approximately), if not before. We find that on the balance of probabilities, the condition presently experienced is a constitutionally based degenerative condition of lumbar spondylosis.
60. In answering the issues in dispute therefore, we find as follows:
(1)The applicant’s reliance on the 1988 Act in claiming compensation is rejected and he does not have an entitlement to incapacity benefits under that Act.
(2)The applicant has not been “incapacitated” for work from 18 October 1995 to the present time.
(3)The back injury originally suffered in March 1983 has been resolved. The present condition is a separate and constitutionally based condition and is not compensable as part of the decision under review.
61.The decision is affirmed.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K S Levy RFD, and Associate Professor J B Morley RFD, Member
Signed: ......................[Sgd].......................................................
Kate Slack, Research AssociateDate/s of Hearing 10 June and 21 October 2010
Date of Decision 19 November 2010
Counsel for the Applicant Ian Klevansky
Solicitor for the Applicant Burns Law
Counsel for the Respondent Charles Clark
Solicitor for the Respondent Sparke Helmore Lawyers
0
22
0