Sellick and Australian Postal Corporation
[2009] AATA 158
•12 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 158
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1841
GENERAL ADMINISTRATIVE DIVISION ) Re ALLAN SELLICK Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Justice Tamberlin, Presidential Member
J. W. Constance, Senior Member
Dr M. D. Miller AO, MemberDate12 March 2009
PlaceCanberra
Decision 1) The application is dismissed.
2) The parties have liberty to apply within 14 days in relation to costs.
...................[sgd]......................
J. W. Constance, Senior Member
CATCHWORDS
COMPENSATION – claims for rehabilitation and compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – two decisions of Administrative Appeals Tribunal remitted back to Tribunal for further consideration - whether Tribunal has jurisdiction to re-hear first reviewable decision in relation to shoulder injury – whether Tribunal erred in finding liability for additional conditions not the subject of notice of injury in relation to first reviewable decision – whether Tribunal made findings of fact in support of which there was no evidence or forgot or ignored evidence in relation to second reviewable decision for claimed hernia injury -– causation – whether injuries claimed for were sustained in the course of applicant’s employment – nature and conditions of applicant’s employment
Safety, Rehabilitation and Compensation Act 1988 (Cth): Sections 4, 5A, 14, 53, 54, 60, 62, 64
Australian Postal Corporation v Sellick [2008] FCA 236
REASONS FOR DECISION
12 March 2009 Justice Tamberlin, Presidential Member
J. W. Constance, Senior Member
Dr M. D. Miller AO, Member1. These reasons relate to claims for rehabilitation and compensation by Mr Allan Sellick associated with his duties in relation to the sorting and delivery of mail whilst in the employ of the Australian Postal Corporation (Australia Post). The matter has been referred back to this Tribunal for further consideration as a consequence of a decision of Bennett J delivered on 7 March 2008: see AustralianPostal Corporation v Sellick [2008] FCA 236 wherein her Honour found that the Tribunal in an earlier decision of 1 March 2007 made errors of law in its reasons.
2. The errors of law found by her Honour involved determinations that the Tribunal had failed to consider certain submissions and evidence or give proper reasons in relation to the way in which conditions arose out of the claimed injury.
3. In the initial proceeding, on 1 March 2007, the Tribunal decided to set aside two reviewable decisions made by Australia Post under s 62 of the Safety, Rehabilitation and Compensation Act (Cth) 1988 (the SRC Act), by which Australia Post had determined that it was not liable to pay Mr Sellick compensation for symptoms relating to injuries apparently sustained whilst at work. One of those reviewable decisions concerned a claim for pain in the right shoulder and the other was in relation to a claim for injury to the left and right groin.
4. The appeal to the Federal Court was filed by Australia Post under s 44 of the Administrative Appeals Tribunal Act 1975. It had also filed an application for review of the decision under the Administrative Decisions Judicial Review Act 1975 and s 39B of the Judiciary Act 1902.
BACKGROUND
5. The applicant, a postal delivery worker, commenced employment with Australia Post in 1986. On 3 November 2002 he lodged a claim under s 14(1) of the SRC Act for rehabilitation and compensation associated with his duties of the sorting and delivery of mail by motorcycle, for “pain in the right shoulder”. No other injury to any other part of the body was identified in that claim form, and it was common ground that the claim filed was that required by Comcare at that time.
6. Section 14(1) of the SRC Act provides that compensation is payable in respect of an injury suffered by an employee. Section 5A(1) specifies that, in order to be compensable, such an injury must arise out of, or occur in the course of the, employee’s employment.
7. Medical diagnosis of Mr Sellick on 8 November 2002 found “right interscapular stabiliser strain/shoulder and upper back pain”. On 22 November 2002 this was presented in a medical report as a history of having sustained “a soft tissue injury of the right shoulder girdle musculature” (the right shoulder injury) and, on examination, there was said to be tenderness in the upper thoracic area. Later medical certificates and reports referred to upper back strain as well as shoulder pain.
8. Australia Post accepted liability under s 14(1) of the SRC Act for the right shoulder injury on 28 November 2002. Accordingly, compensation for the right shoulder injury was made for the period October 2002 to October 2004.
9. By March 2003 Mr Sellick was pain and symptom-free and performing normal duties. On 7 September 2004, Australia Post wrote to Mr Sellick in reference to his claim in respect of the right shoulder injury. The letter referred to a report of Dr Chew which stated that the applicant’s compensable condition had ceased in April 2004 and that ongoing pain was more likely to be the result of a pre-accident condition in the form of a degenerative spinal disease. The letter notified Mr Sellick of an intention to cease further payments of compensation and provided an opportunity to furnish evidence to counter that opinion, and to explain the relationship between the condition and his employment. Mr Sellick submitted a report by Dr Bills in support of his claim, which was received by Australia Post on 11 October 2004.
10. On 15 October 2004 Australia Post decided that, on the medical evidence, the effect of the right shoulder injury had ceased and that Australia Post had no current liability in respect of that injury pursuant to the SRC Act. On 19 October 2004 Mr Sellick requested a reconsideration of the determination as being incorrect in fact and law. On 27 October 2004, in what is referred to as the “first reviewable decision”, Australia Post reconsidered its liability in respect of the right shoulder injury. The decision-maker considered Mr Sellick was no longer suffering any effects from that injury and that he was not presently entitled to payment of compensation, and affirmed the earlier determination. The decision referred to the compensable injury of the right shoulder and the claimed injury of pain in the right shoulder. It referred also to the medical diagnosis of right shoulder/upper back pain as well as that of the right shoulder injury. The decision-maker accepted that the medical evidence supported the existence of an underlying degenerative disease of the thoracic spine but confined itself to the claim with respect to the shoulder injury, which had resolved in the absence of any separate claim for compensation for the degenerative condition.
11. The Tribunal was satisfied that the injury to the right shoulder and the sprain of the interspinous ligament each constituted an injury within the definition of s 4 of the SRC Act and that the aggravation of the degenerative condition was a disease. Although Mr Sellick had only complained of pain in the right shoulder in the claim form, the Tribunal found that the injury was not so limited and that he continued to suffer the effects of additional conditions. Accordingly, the Tribunal at first instance decided in Mr Sellick’s favour and determined that he was entitled to compensation under the SRC Act.
12. On 24 June 2004 Mr Sellick lodged a claim for rehabilitation and compensation for “injury to the left and right groin (hernia)” which occurred in May 2004. He claimed that this occurred in relation to duties of ‘delivery of mail on motorcycle and foot; sequencing of mail in V-sort frames; dispatching of articles’ while he was walking and delivering mail. A decision was made on 26 July 2004 to deny liability for this injury, based on the decision-maker’s conclusion that there was no evidence that Mr Sellick’s work contributed to any organic condition of the groin. Liability for that injury was not accepted as work related. In what will be known as the “second reviewable decision,” dated 26 October 2004, this decision was affirmed. The decision-maker stated that she was not satisfied that Mr Sellick had right and/or left inguinal herniae or that his duties could give rise to the development of herniae.
13. On review of the second reviewable decision, the Tribunal was satisfied that Mr Sellick suffered bilateral inguinal herniae and that it was a disease within the meaning of s 4 of the SRC Act. The Tribunal also expressed satisfaction on the evidence that Mr Sellick’s employment with Australia Post had contributed to the development and aggravation of the herniae. This was based on the evidence of Dr Bills, Dr Tran, Dr McMahon and Dr Griffith, and the evidence as to the lifting and other duties undertaken as part of his employment.
14. The Tribunal decided that Australia Post was liable to pay compensation to Mr Sellick in respect of an injury, being by bilateral inguinal herniae suffered on 31 May 2004. In relation to this claim it was noted that lifting had not been the subject of any claim and that Mr Sellick had claimed the herniae resulted from the walking that he was required to do, but he gave no evidence of the material fact, nor did a postal delivery employee who was called to give evidence in the case.
FIRST DECISION ON REVIEW – SHOULDER INJURY
15. In relation to the first reviewable decision, Bennett J considered that the Tribunal did not give reasons for its conclusion that the additional conditions which it accepted to be different work-related injuries were caused by or connected with the claimed injury. Her Honour considered that the way Mr Sellick described the pain in his shoulder did not limit the relevant injury only to the right shoulder. However, the claim was for an injury that covered pain in the right shoulder only. Her Honour considered that the Tribunal did not explain how the additional conditions that continued after the shoulder pain resolved were related to the claimed injury to the right shoulder.
16. Her Honour also considered in relation to the first reviewable decision that the Tribunal did not explain how Australia Post was liable under the SRC Act. Her Honour considered that the Notice of Injury and the claim form both referred to right shoulder pain which had been resolved and that the first reviewable decision could be read to refer to additional conditions, which included a reference to certificates by Dr Shroot and Dr Chew in 2004 that diagnosed some upper back pain and a minor soft tissue injury to his thoracic spine. Those conditions resulted in pain in a different area to that of the subject of the claim, that being the mid-thoracic spine. Those conditions were found to have resulted in pain in a different area to that the subject of the claim. Generally the spinal condition was a pre-existing condition.
17. Her Honour pointed out that while injury or disease of the thoracic spine was referred to in the first reviewable decision, it was not the subject of that decision, but was referred to only in the context of pre-existing conditions not relevant to the claimed injury. Her Honour commented that, in finding liability under the SRC Act for the additional conditions, which were neither the subject of a Notice of Injury under s 53, nor a claim for compensation under s 54 or a determination under s 60, the Tribunal had failed to observe the limitations on its jurisdiction flowing from these provisions and that the procedural pre-requisites to entitlement to compensation under the SRC Act had not been complied with. Her Honour considered that the Tribunal had not given the necessary explanations or reasons for its conclusions.
SECOND DECISION ON REVIEW – HERNIAE CLAIM
18. Her Honour found that there was no evidence to support the findings or the material facts on which the Tribunal’s conclusion was based and that the Tribunal did not properly determine a work-related cause of the injury. It did not properly consider the possible differences between a hernia caused by walking and a hernia caused by lifting. Her Honour noted that the claim under s 54 of the SRC Act was limited to injury from walking and that the decision that Mr Sellick was entitled to compensation for that injury was an error of law.
19. As a consequence of her reasoning, her Honour decided with respect to the first decision that the Tribunal had failed to give reasons for its conclusion that the additional conditions were work-related, that they were related to the claimed injury, and that Australia Post was liable for those injuries. Her Honour held that this was an error of law. In relation to the second reviewable decision, the Tribunal failed to consider an aspect of Australian Post’s case, that the factual finding which formed the basis for its conclusion was not supported by any evidence.
20. Her Honour decided that each of the reviewable decisions should be remitted back to the Tribunal to be decided according to law and in accordance with her Honour’s reasons. This has been done and these reasons relate to that reconsideration.
21. We now turn to the present claims.
FIRST REVIEWABLE DECISION – PAIN IN THE RIGHT SHOULDER - JURISDICTION
22. When the matter came on for hearing before the Tribunal for reconsideration, Australia Post raised a question of jurisdiction based on the reasoning in her Honour’s decision in relation to review of the first decision relating to “pain in the right shoulder.”
23. On the reconsideration hearing no additional evidence was adduced by either party.
24. In Australian Postal Corporation v Sellick [2008] FCA 236, Bennett J reasoned that in finding liability under the SRC Act for additional conditions which had not been the subject of a Notice of Injury under s 53, a claim for compensation under s 54, a determination under s 60, or the first reviewable decision under s 62 and an application to the Tribunal under s 64, the Tribunal had failed to observe the limitations on its jurisdiction flying from these provisions, and that the procedural prerequisites to entitlement to compensation had not been observed. Section 53(1) of the Act provides for Notice of Injury or loss of or damage to property and reads:
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a)as soon as practicable after the employee becomes aware of the injury … section 54 provides that compensation is not payable to a person under the Act unless a claim for compensation is made by or on behalf of the person under s 54.
25. At [57] of her judgement, her Honour said:
No accident report or claim was specifically made for the additional conditions as is required by ss 53 and 54 of the SRC Act. If the additional conditions had not been the subject of a notice of injury under s 53, a claim for compensation under s 54, a determination under s 60, a reviewable decision under s 62 and an application to the Tribunal under s 64 of the SRC Act, the Tribunal had no power or jurisdiction to make the decision that it did. Australia Post accepts that, as the Tribunal noted, the medical certificates provided in support of the shoulder claim referred to complaints referable to the upper back and not related to the shoulder. A medical assessment by Dr Chew of July 2004 noted that Mr Sellick suffered from mid thoracic spine pain in October 2002 with no specific injury to account for the onset of his pain. Dr Chew’s diagnosis of his then current condition was of soft tissue injury to his mid thoracic spine while carrying out his postal delivery duties, superimposed on constitutional degenerative changes in his thoracic spine. Australia Post accepts that the reviewable decision addressed whether the problems were due to an underlying constitutional disorder not caused, aggravated or accelerated by his employment. However, a mere reference to the spine in some of the medical certificates is, Australia Post says, insufficient compliance with the SRC Act.
26. Her Honour went on to say at [71]:
Further, the Tribunal did not explain how Australia Post was liable under the SRC Act. The notice and the claim referred to right shoulder pain which had resolved. The first reviewable decision can, read beneficially to Mr Sellick, be said to have included reference to the additional conditions in that it included a reference to Dr Shroot’s and Dr Chew’s medical certificates of 2004 that diagnosed some upper back pain and minor soft tissue injury to his thoracic spine. However, those conditions were found to have resulted in pain in a different area to that the subject of the claim, the mid-thoracic spine. The degenerative spinal condition was a pre- existing condition. While injury or disease of the thoracic spine was referred to in the first reviewable decision, it was not the subject of that decision. It was referred to in the context of pre-existing conditions which were not relevant to the claimed injury. In finding liability under the SRC Act for the additional conditions which had not been the subject of a notice of injury (s 53), claim for compensation (s 54), a determination under s 60, the first reviewable decision (s 62) and an application to the Tribunal (s 64), the Tribunal failed to observe the limitations on its jurisdiction flowing from these sections of the SRC Act and the procedural prerequisites to entitlement to compensation under the SRC Act (Lang at [41]–[43]; Lees at [35]). (Emphasis added)
27. It is clear from her Honour’s reasons and in particular the above quoted paragraph that her Honour found an absence of jurisdiction in the Tribunal in respect to the additional “conditions”. Her Honour’s reasoning is binding on the Tribunal and it is not for this Tribunal on reconsideration in this hearing to depart from her Honour’s ruling. The mandate of s 55 that the required Notice of Injury must be given, and if it is not then the Act does not apply in respect of that injury applies in the present case.
28. In substance, the submission on behalf of Mr Sellick on this jurisdictional question was that the decision of her Honour was obiter or alternatively that it was wrong and should not be followed. The Tribunal does not accept this view of the clear statement of reasons by her Honour in this question and the detailed consideration given to the point and the provisions of the SRC Act by her Honour.
29. It will be noted from [71] that her Honour expressly rejected the submission that, although the first reviewable decision made reference to the additional conditions beyond the claimed “pain in the right shoulder”, nevertheless the conditions referred to in the context of pre-existing conditions which were not relevant to the claimed injury in her Honour’s view. They resulted in pain in a different area to that the subject of the claim and while injury or disease of the thoracic spine was referred to in the first reviewable decision it was not the subject of that decision.
30. Her Honour’s decision was not appealed.
31. Accordingly, in light of the foregoing, the Tribunal finds on the reconsideration that there is no jurisdiction to consider the claim insofar as it was outside the original claim.
SECOND DECISION ON REVIEW – HERNIA ISSUE
32. Section 14(1) of the SRC Act provides that an applicant is entitled to compensation in respect of an injury suffered which results in impairment or incapacity for work. Section 5A requires that, in order to be compensable, such an injury must arise out of, or in the course of, the applicant’s employment.
33. The entitlement of Mr Sellick to compensation in relation to the hernia claim questions whether the evidence establishes that:
1)Mr Sellick suffers from one or more herniae
2)If so, whether the herniae were contributed to by his employment with Australia Post
34. Mr Sellick’s evidence is that his duties as a postal officer included a walking beat in the Queanbeyan Business area delivering mail by hand. In about May or June 2004 he started to experience pain in his left groin and later in his right groin, with the left being worse than his right. The pain caused him some difficulty in walking. He first felt the pain whilst walking on his beat delivering mail. Mr Sellick said also that since 2004 he has continued to suffer groin pain from time to time although the extent of the pain in the right groin has lessened. A claim form for this injury was lodged on 24 June 2004. Mr Sellick relies on the opinions of his general practitioner Dr Bills and specialists Dr Tran and Dr McMahon in relation to this aspect of the claim.
35. We are satisfied on the balance of probabilities that Mr Sellick has suffered the pain he described and that he first experienced the pain whilst walking on his beat as part of his employment.
36. Australia Post did not challenge the evidence given by Mr Sellick that he suffered pain, or that he experienced the pain whilst on his walk beat during the course of his employment. However, Australia Post has refused at all times to accept liability for the hernia claim. There is a real dispute as to whether the applicant actually had any hernia at all.
37. Australia Post denies that Mr Sellick is suffering from a hernia or herniae, and relies on the opinions of Dr Burke, Dr McGill and Dr Endrey-Walder. In 1997 Mr Sellick had a previous injury, where he had slipped down a flight of stairs at work, and subsequently claimed compensation for an aggravation of early osteoarthritic changes in his spine, hips and sacroiliac joints. In their submissions to the Tribunal at first instance, Australia Post claimed that Mr Sellick’s current pain in his groin is caused by this pre-existing osteoarthritis, and not due to herniae.
38. The Tribunal’s failure to consider Australia Post’s case that osteoarthritis rather than a hernia explained Mr Sellick’s symptoms was one of the legal errors found by Bennett J at [83]-[89]. Australia Post maintains that the Tribunal ought not to be satisfied that the applicant suffered any hernia at all, much less one that was related to work.
MEDICAL EVIDENCE – APPLICANT’S EVIDENCE
39. There is only limited medical evidence as to the cause of the herniae suffered by Mr Sellick.
40. Mr Sellick consulted Dr Bills approximately one week after he first experienced pain in his left groin. Dr Bills was of the opinion that Mr Sellick suffered from a bilateral inguinal hernia. An ultrasound of Mr Sellick's left groin carried out on 2 June 2004 showed a small direct inguinal hernia.
41. Sometime between June 2004 and February 2005 Mr Sellick was examined by Dr Tran, a Consultant General Surgeon. On 3 February 2005 Dr Tran reported that clinical examination revealed a left inguinal hernia and an ”early hernia” on the right side which had been confirmed by ultrasound.
42. Mr Sellick was examined by Dr McMahon on 2 December 2004. Dr McMahon reported that Mr Sellick had small bilateral indirect inguinal herniae with the left being slightly larger than the right. He stated that both herniae had been confirmed by ultrasound.
MEDICAL EVIDENCE – RESPONDENT’S EVIDENCE
43. The respondent submits that there is no evidence on which the Tribunal can find that Mr Sellick suffered a hernia. If the Tribunal does find Mr Sellick suffers from hernia symptoms, the respondent submits that there is no evidence to show that this injury is related to or caused by his work with Australia Post.
44. Dr Burke examined Mr Sellick in July 2004. At that time Dr Burke was unable to identify a cause of Mr Sellick’s groin symptoms. He reported that there was no mass, tenderness or cough impulse in either groin. In his opinion ultrasound features such as shown in relation to Mr Sellick were not reliable indicators of a hernia.
45. Dr McGill assessed Mr Sellick in March 2005. Dr McGill could not palpate any abnormality in either groin, but coughing produced a slight impulse on the left. Dr McGill gave evidence that in his opinion Mr Sellick suffers from bilateral hip osteoarthritis. He said that his clinical findings on examination of Mr Sellick were entirely consistent with this diagnosis, and the pain on walking complained of by Mr Sellick was consistent with osteoarthritis in his hips.
46. We do not accept Australia Post’s submission in respect of this argument. There is no reasonable evidence that an underlying osteoarthritic condition is contributing to the groin symptoms. We accept the evidence of Dr Tran and Dr McMahon who are both experienced surgeons. The bi-lateral hernia is confirmed by ultrasound, which provides independent corroboration of their opinions. We also prefer the opinions of Dr Tran and Dr McMahon to that of Dr Burke. Dr Burke does not explain why he is of the view that the ultrasound findings were unreliable in Mr Sellick's case, nor was he able to identify a cause for the pain of which Mr Sellick complained.
47. We find that, on the medical evidence before the Tribunal, Mr Sellick did suffer a double inguinal hernia. However, this does not go so far as to say that it was the walking which caused it.
CAUSATION
48. In the alternative, Australia Post claim that Mr Sellick is not suffering from a work-related injury in that the herniae were not caused as a result of his employment. On the Notice of Injury form, Mr Sellick claims that the herniae were sustained as a result of “walking” whilst delivering the mail. Australia Post note in their submissions that the hernia claim does not refer to any other physical activity other than walking as being the cause of any hernia symptoms; Mr Sellick made no claim under s 54 of the SRC Act for an injury incurred while lifting. Australia Post submits that the evidence does not allow a finding that walking caused or contributed to the herniae, nor did the Tribunal previously make such a finding. Further, in accordance with the decision of the Federal Court, we must consider only the evidence as to the contribution (if any) of his walking activity undertaken as part of his duties.
49. In the matter remitted to this Tribunal, the applicant sought to establish a case for the hernia claim based upon lifting, rather than propounding that the activity of walking caused or aggravated the hernia symptoms. Counsel for Mr Sellick argued that the evidence established that when he was on his walking beat he was carrying bags of mail which sometimes weighed in excess of 20 kilograms. It was put that there was no evidence before the Tribunal that there were any other activities undertaken by Mr Sellick which would have contributed to his condition.
50. Australia Post submits that the Tribunal cannot be satisfied that Mr Sellick carried bags of mail or anything of significant weight while walking on his beat. It was argued further that there was no evidence to justify a finding that Mr Sellick’s walking on his beat contributed to the development of the herniae.
51. At the hearing, Mr Sellick did not describe in detail how he delivered mail whilst on a walking beat and he did not give evidence that he carried any substantial weight whilst doing so. On the basis of a reference in the report of Dr Burke (which was not denied by Mr Sellick) we are satisfied that he delivered mail in the business area by walking and pushing a cart containing the mail. However, there is no evidence of the weight of this cart or of any of the mail items carried by Mr Sellick whilst on his beat.
52. Ms Prykiel, the Delivery Manager at the Queanbeyan Delivery Centre of Australia Post, gave evidence at the previous Tribunal hearing. Ms Prykiel was Mr Sellick's supervisor in 2002. According to her, the bags of mail referred to as depot bags (and which on occasions weighed in excess of 20 kilograms) were delivered to a depot box by persons other than Mr Sellick. As part of his delivery duties Mr Sellick would take the mail from the depot bags at the depot box and deliver it from that point. He did not lift the depot bags as part of his walk beat. We accept this evidence.
53. Dr Grfiffith, Dr Bills, Dr McMahon, Dr Endrey-Walder and Dr Tran are of the opinion that the applicant suffers from the hernia and that the condition is work related.
54. In his report of 3 June 2004, Dr Bills noted that walking aggravated the left hernia which was “probably work related.” He did not elaborate on the aspects of Mr Sellick's employment to which he was referring. When he gave evidence Dr Bills said that he was uncertain as to the cause of the hernia.
55. Dr McMahon and Dr Tran did not express opinions as to the cause of Mr Sellick's herniae. Dr Endrey-Walder stated his opinion that “the nature and conditions of this gentleman’s work with Australia Post would have to be considered as having materially contributed to the development of his inguinal herniae.” He did not specify the particular aspects of his work to which he was referring.
56. In his report of 10 January 2004, Dr Griffith stated that “activities in the workplace would be likely to result in progression of herniae once initiated.”When he gave evidence he described a number of lifting activities engaged in by a person in a position such as Mr Sellick which he said were consistent with the development of a hernia. However these were activities which are not the subject of the application before us.
57. Taking into account the views outlined above, we are not satisfied on the balance of probabilities that Mr Sellick's walking on the beat contributed to his suffering herniae. Further, we are not satisfied that any lifting or carrying done by Mr Sellick whilst walking was of sufficient weight to satisfy us that lifting or carrying contributed to the condition.
58. We do not accept the argument put for Mr Sellick that there is no evidence as to other activities he engaged in that may account for the development of herniae. When he gave evidence, Mr Sellick referred to lifting boxes of mail in circumstances outside the scope of consideration in this application. The view of some of the doctors was that lifting involving the increase of intra-abdominal pressure may cause herniae.
59. For the above reasons, the application is dismissed. The decision of the Tribunal made on 1 March 2007 is set aside. As no submissions were made as to costs in the course of the hearing, the parties are to have liberty to apply to the Tribunal within 14 days in relation to costs.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Tamberlin, Senior Member Constance and Dr Miller AO, Member.
Signed: .......................[sgd].........................................................
Tal Aviram, AssociateDate of Hearing 6 November 2008
Date of Decision 12 March 2009
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Mr J. May, Slater & Gordon
Counsel for the Respondent Mr G. Johnson
Solicitor for the Respondent Mr L. Forner, Forners Solicitors
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