FEDERAL COURT OF AUSTRALIA
Scanes v Comcare [2024] FCA 961
Review of: Scanes and Comcare (Compensation) [2023] AATA 3537 File number: ACD 68 of 2023 Judgment of: BROMWICH J Date of judgment: 23 August 2024 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) affirming decision of Comcare to decline applicant’s compensation claim under s 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Tribunal erred in law by misunderstanding or failing to deal with or accept a central contention of the applicant’s case – whether Tribunal erred in law by relying on bare assertions of an expert called by Comcare where Tribunal had considered and disposed of central contentions of the applicant’s case and supporting evidence – where opinions of expert called by Comcare were not bare assertions – HELD: application dismissed with costs Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4
Cases cited: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 77 ALJR 1088
Kennedy v Cordia (Services) LLP [2016] UKSC 6; [2016] 1 WLR 597
Division: General Division Registry: Australian Capital Territory National Practice Area: Employment and Industrial Relations Number of paragraphs: 19 Date of hearing: 2 August 2024 Counsel for the Applicant: Mr LT Grey and Mr J Mrsic Solicitor for the Applicant: Snedden Hall & Gallop Counsel for the Respondent: Mr CJ Clark Solicitor for the Respondent: Sparke Helmore ORDERS
ACD 68 of 2023 BETWEEN: NOELENE SCANES
Applicant
AND: COMCARE
Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The applicant pay the respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an appeal by Ms Noelene Scanes under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal to affirm the decision of the respondent, Comcare, that it was not liable to pay her compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) by way of dependency benefits and funeral expenses (the latter not being mentioned in the summary reproduced in the next paragraph). Unless otherwise specified, all legislative references in these reasons are to provisions of the SRC Act.
It is convenient to reproduce the following overview summary from Ms Scanes’ written submissions in chief (omitting footnotes):
[1] The Applicant brought a claim under s.17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) following the death of her late husband, Mr Warren Scanes. Mr Scanes was born on 1 January 1949 and was employed as an officer of the Australian Federal Police (“AFP”),…
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Details
- AGLC
- Scanes v Comcare [2024] FCA 961
- Case
- [2024] FCA 961
- Decision Date
CaseChat Overview and Summary
In Scanes v Comcare, the applicant sought to appeal a decision of the Administrative Appeals Tribunal (AAT), which had affirmed a decision of Comcare to decline the applicant's compensation claim. The applicant argued that the AAT had erred in law by misunderstanding or failing to deal with her central contentions, and by relying on bare assertions of an expert called by Comcare. The Federal Court of Australia was required to determine whether the AAT had erred in law, and if so, whether that error was sufficient to vitiate the AAT's reasons or conclusion.
The court held that the grounds of appeal were essentially seeking a different factual outcome, rather than raising a real question of law. The court found that the AAT had not erred in law by misunderstanding or failing to deal with the applicant's central contentions, as the AAT had considered and disposed of those contentions and the supporting evidence. The court also held that the AAT had not erred in law by relying on bare assertions of an expert called by Comcare, as the expert's evidence was not unsubstantiated, but was based on scientific evidence and data that had been established by the expert or other competent witnesses. The court found that the applicant had not shown that the AAT's reasons or conclusion were vitiated by any error of law, and dismissed the appeal with costs.
The final orders of the court were that the appeal be dismissed and that the applicant pay the respondent's costs as agreed or assessed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
The court held that the grounds of appeal were essentially seeking a different factual outcome, rather than raising a real question of law. The court found that the AAT had not erred in law by misunderstanding or failing to deal with the applicant's central contentions, as the AAT had considered and disposed of those contentions and the supporting evidence. The court also held that the AAT had not erred in law by relying on bare assertions of an expert called by Comcare, as the expert's evidence was not unsubstantiated, but was based on scientific evidence and data that had been established by the expert or other competent witnesses. The court found that the applicant had not shown that the AAT's reasons or conclusion were vitiated by any error of law, and dismissed the appeal with costs.
The final orders of the court were that the appeal be dismissed and that the applicant pay the respondent's costs as agreed or assessed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
In substance, rather than form, these two grounds of appeal were really seeking a different factual outcome. No real question of law was raised. It follows that ground 1 must fail. Ground 3 is entirely collateral to ground 1 and accordingly it must fail as well.Ground 2 – Expert assertions without evidence The cornerstone of this ground of appeal is reliance upon a decision of the Supreme Court of the United Kingdom in Kennedy v Cordia (Services) LLP [2016] UKSC 6; [2016] 1 WLR 597 at [48]:An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA 352, 371:“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.” Ms Scanes’ argument is made in relation to the evidence of Dr Hossack in cross-examination during the expert conclave. While the notice of appeal isolates two segments of that evidence, it is necessary to go somewhat beyond that for context. The passages are as follows, with the impugned parts emphasised in bold:(a)First passage: MR GREY: Right. So we’ve got an interruption then to the blood supply on the left-hand side, which was the one that was compensating for the fact that the right coronary artery had been occluded in 1993. Correct? DR HOSSACK: Yes. MR GREY: So if that blood supply is compromised through another plaque rupture which causes an occlusion in the left-hand side blood supply, that builds on the fact that the original right-sided blood supply was already compromised, doesn’t it? DR HOSSACK: No, it doesn’t, and I disagree with that because the left – if the left anterior descending coronary artery or the left main coronary artery was the culprit, the size of the myocardial infarction would be so large that it would not be – the outcome would not be influenced by any prior myocardial infarction that occurred in 1993. The myocardial infarction that occurred in 1993 was small, and I think there’s a lot of scientific evidence to indicate that there can be remodelling of the left ventricle and that normal contracting heart muscle can regenerate within the area of the myocardial infarction and cause the left ventricle to function normally. MR GREY: Is there any such evidence that you can point to in the material before us? DR HOSSACK: The evidence that I can point to is twofold: one, the ventriculogram that was performed after the myocardial infarction in 1993 was normal; the function was normal; that the electrocardiogram done in 2005 showed no evidence of an inferior myocardial infarction. MR GREY: Let me just find the ventriculogram – I’ve got it here somewhere – because my reading of it is that it says there was some damage to the inferior left side of the left ventricleDR HOSSACK: There is a measurement – a measurement called the ejection fraction, and it’s estimated that the normal range for an ejection fraction is 55-70 per cent. The ejection fraction measured at the time of the ventriculogram was 56 per cent, within the normal range. MR GREY: What do you derive from that? DR HOSSACK: That the – that the deceased had normal left ventricular function following the myocardial infarction. MR GREY: Of ‘93? DR HOSSACK: Correct. MR GREY: And that’s because of the extra blood being supplied from the left-hand side, isn’t it? DR HOSSACK: No, it’s because the size of the myocardial infarction was small. MR GREY: But isn’t that the reverse causation? I mean, it’s small because there was, you say, already a stenotic right artery, and that was producing the collateral developed of blood flow which ameliorated over time, prior to the myocardial infarction, the effects of that infarction. Isn’t that what you’ve said in your report? DR HOSSACK: No. I’m saying that the myocardial infarction that occurred in 1993 resulted in no residual damage to the left ventricle.(b)Second passage, being a question put by the Tribunal member to all three experts, and answered first by Ass Prof Colquhoun, second by Dr Hossack and third by Ass Prof Gutman, before being revisited by Dr Hossack as a comment on Ass Prof Colquhoun’s answer in the passage Ms Scanes relies upon, reproducing just the question and Dr Hossack’s further comment: MEMBER: …This one is addressed to all of you. Could the acute coronary event suffered by Mr Scanes have resulted from the 1993 myocardial infarction even if he had, in the intervening years, had untreated cholesterol, no ongoing relevant workplace stress, and had ceased smoking since in or around 1995?…DR HOSSACK: Thank you. If we look at this a different way and say, a person had a heart attack involving a left anterior descending or the left main coronary artery and had never had a right coronary artery occlusion and never had a small inferior myocardial infarction, what would the outcome have been? And in my opinion, the outcome would have been exactly the same because the myocardial infarction from the occlusion of the left anterior descending or the left main coronary artery would have been the same, and there was so much damage that the outcome would’ve been the same irrespective of the prior myocardial infarction.
Decision
Reasons for decision
The proper way to address any perceived deficiency, or lack of foundation, for the evidence given is to challenge it squarely at the time it was given. Had that taken place, Dr Hossack might well have been able to explain how the evidence he gave was arrived at, rather than leaving it to the clear, and indeed irresistible, inference that this was what had taken place. This was a dynamic and complicated process, yet the approach taken is to apply a forensic looking glass and to search for error. I am not satisfied that there was any deficiency of the kind asserted in either of the passages relied upon. But even if there was, I am unable to accept that this was an error of law at all, let alone one capable of vitiating the Tribunal’s reasons or conclusion. This ground of appeal must also fail. Conclusion As all three grounds of appeal have failed, the appeal must be dismissed with costs.
Ratio Decidendi
Legal Principle Established
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