Singleton v Comcare

Case [2019] FCA 2104

FEDERAL COURT OF AUSTRALIA

Singleton v Comcare [2019] FCA 2104

Appeal from: Singleton v Comcare (Compensation) [2018] AATA 4088 (1 November 2018)
File number: ACD 91 of 2018
Judge: ABRAHAM J
Date of judgment: 13 December 2019
Catchwords: WORKERS’ COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed the respondent’s decision that the applicant’s Chronic Pain Syndrome (CPS) was not an “injury” for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and the respondent was therefore not liable to pay compensation – whether Tribunal misconstrued the concept of “injury” in the SRC Act so as to exclude secondary CPS – whether Tribunal failed to address a significant part of the applicant’s case constituting an error of law – where alleged error of law turns on construction of the Tribunal’s reasons – appeal dismissed
Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 24, 25, 27, 61, 62
Cases cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 32

Australian Telecommunications Commission v Novak [1989] FCA 63; (1989) 86 ALR 457

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280

Comcare v Farrell [2016] FCAFC 115; (2016) 250 FCR 432

Comcare v Lofts [2013] FCA 1197; (2013) 217 FCR 220

Commonwealth of Australia v Ford [1986] FCA 94; (1986) 65 ALR 323

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Howard v Comcare [2019] FCA 1031

Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253

Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558

Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Date of hearing: 3 September 2019
Registry: Australian Capital Territory
Division:  General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 75
Counsel for the Applicant: Mr P Walker with Mr A Anforth
Solicitor for the Applicant: David Healey Solicitors Pty Ltd
Counsel for the Respondent: Mr A Berger
Solicitor for the Respondent: Lehmann Snell Lawyers

ORDERS

ACD 91 of 2018
BETWEEN:

BENJAMIN SINGLETON

Applicant
AND:

COMCARE

Respondent

JUDGE:

ABRAHAM J

DATE OF ORDER:

13 DECEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The applicant to pay the costs of the respondent to be agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ABRAHAM J:

  1. In 2013 the applicant suffered an…

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Singleton v Comcare [2019] FCA 2104
Case
[2019] FCA 2104
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to review the decision of the Administrative Appeals Tribunal (AAT) in Singleton v Comcare. The dispute involved whether the applicant’s Chronic Pain Syndrome (CPS) constituted an “injury” under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), thereby making the respondent liable for compensation. The applicant had previously accepted injuries to his right arm, including an impingement syndrome to the right shoulder and a CPS in the right arm. The respondent argued that the CPS was not a separate injury and thus not compensable. The AAT affirmed the respondent’s decision, finding that the CPS was not an injury for the purposes of the SRC Act.

The key legal issues before the court were whether the AAT misconstrued the concept of “injury” in the SRC Act by excluding secondary CPS, and whether the AAT failed to address a significant part of the applicant’s case, amounting to an error of law. The applicant argued that the AAT misconstrued the meaning of “injury” by considering the CPS as not separate from the shoulder injury, whereas the respondent contended that the AAT’s decision was based on a correct interpretation of the evidence presented. The applicant also submitted that the AAT addressed the wrong question by focusing on whether the CPS was related to the shoulder injury rather than whether it constituted an injury in itself.

The court found that the AAT’s decision was based on a proper interpretation of the evidence and relevant legal principles. The court highlighted that the AAT did not misconstrue the meaning of “injury” but rather accepted the evidence that the applicant’s CPS was not a separate injury from the right shoulder injury. The court further noted that the AAT correctly identified the relevant principles and addressed the question of whether the CPS was an injury within the meaning of the SRC Act. The court emphasised that the AAT’s reasons must be read fairly and as a whole, and it was not appropriate to construe the reasons minutely and finely to find an error. The court concluded that the applicant had not demonstrated an error of law on the part of the AAT.

The court dismissed the appeal and ordered the applicant to pay the respondent’s costs, to be agreed or taxed. This ruling underscores the importance of correctly interpreting statutory definitions and evidence in workers’ compensation cases and affirms the AAT’s authority in reassessing liability for injuries under the SRC Act.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant to pay the costs of the respondent to be agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 22 June 2017, the applicant appealed to the Tribunal.The Tribunal’s decision The applicant's case was summarised as follows. The applicant had accepted injuries to his right arm being an impingement syndrome to the right shoulder accepted in 2013, and CPS in the right arm, accepted in November 2016. The CPS injury was not the same injury as the impingement in his right shoulder and does not manifest in the same impairments as the impingement injury. The applicant's claim for impairment caused by the CPS could succeed on either of two bases: (1) the shoulder injury caused the CPS (taken as a second injury) which caused the partial loss of use of the arm and hand; or (2) the shoulder injury caused the CPS (not elevated to the status of a secondary injury) which caused the partial loss of use of the arm and hand. The respondent's case was summarised as follows. The applicant suffered an accepted injury to his shoulder giving rise to permanent impairment and there was no separate or other additional “injury” resulting in impairment and in accordance with Telstra Corporation v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 (Hannaford) the Tribunal was entitled to “undercut” the respondent's previous acceptance of liability to pay compensation under s 14 of the SRC Act for a separate CPS. Having summarised and considered the respective cases, and relevant authorities the Tribunal concluded:(1)It could, in accordance with the principles in Hannaford, revisit whether liability was correctly accepted by the respondent for CPS under s 14 of the SRC Act. (2)It had to determine whether the applicant's CPS was an “injury” under the SRC Act and only if so satisfied should it go on to assess the degree of permanent impairment suffered. (3)On the basis of the medical evidence, the applicant's CPS was not an “injury” for the purposes of the SRC Act. (4)The respondent's acceptance of liability on 8 November 2016 to pay compensation under s 14 of the SRC Act in relation to CPS was in error. (5)While the applicant did not dispute that the assessment of compensation in relation to his right shoulder and arm injury was adequate, in any event, the adequacy of the compensation paid for that injury was not within the jurisdiction of the Tribunal to review.(6)It was satisfied that the respondent was not liable to pay compensation under ss 24 and 27 of the SRC Act in relation to CPS. The Tribunal’s conclusion was in the following terms (footnotes omitted):118. The evidence before the Tribunal, particularly the expert medical evidence, supports a finding that the Applicant’s ‘chronic pain syndrome’ is not an ‘injury’ for the purposes of the SRC Act.119. Associate Professor McGill’s evidence was that there was no damage to the Applicant’s right upper limb in addition to the right shoulder injury. He said in his oral evidence:… I don’t find evidence of a disorder in the right upper limb, separate from his right shoulder120. Dr Gorman’s concurred that the chronic pain experienced by the Applicant was not the consequence of any anatomical or physical changes. In his opinion the Applicant’s pain is ‘ongoing nociception’ deriving from the Applicant’s injured right shoulder. The CPS is not a separate injury or disease in addition to the Applicant’s right shoulder injury:I believe that he had a chronic pain in the shoulder which … had led to some other effects best described as chronic pain syndrome but they were not a new disease of its own121. Dr Eaton’s evidence was that ‘chronic pain syndrome’ can be considered ‘a condition in its own right’ but he conceded that this is more likely to be in cases of individuals who, unlike the Applicant, ‘develop pain without really any history of any trauma or … any major sort of incident. Akin to developing a migraine or headaches or things like that.’122. Accordingly, on the basis of the medical evidence before it, the Tribunal finds that the Applicant did not suffer an ‘injury’ as defined by s 5A(1) of the SRC Act. The evidence does not support a finding that the Applicant’s CPS is an injury simpliciter under s 5A(1)(b) or a disease under s 5A(1)(a) and s 5B(1).123. It follows that the Respondent’s acceptance of liability on 8 November 2016 to pay compensation under s 14 of the SRC Act in relation to ‘chronic pain syndrome’ was in error.Relevant legal principles

Ratio Decidendi

Legal Principle Established

The respondent cautioned against this Court slipping from legitimate review of the Tribunal's decision on a question of law into reconsideration of the merits of its decision and also to avoid construing the Tribunal’s reasons “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ citing the Full Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287.Consideration The applicant bears the onus of demonstrating an error of law on the part of the Tribunal: Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [192]-[202] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ. Moreover, as the respondent submitted, the Tribunal’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and the reasons must be read fairly and as a whole: Wu Shan Liang at 291 per Kirby J. The legal principles relevant to determining this matter were not in dispute in the Tribunal, and no challenge is made to the accuracy of the Tribunal’s recitation of those relevant principles. Against that background, the respondent’s submissions should be accepted. First, while the applicant submitted that the evidence before the Tribunal was relevant context, that evidence does not support his submission that the Tribunal misconstrued the meaning of “injury”. Rather, the Tribunal’s conclusion is based on an acceptance of certain evidence which was before it, and not a misconstruction of the concept of “injury”. This case is to be distinguished from Howard v Comcare, where the Tribunal found that CPS was secondary to an earlier injury. As Perry J concluded, based on that finding, the Tribunal had misconstrued the meaning of an “injury” because secondary injuries are injuries for the purposes of the SRC Act. The Tribunal in this case made no such finding. To the contrary, the Tribunal concluded the applicant’s CPS was not a separate injury from the right shoulder injury. While the applicant relied on certain evidence which, he submitted, was capable of supporting a finding that the applicant’s shoulder injury and CPS was not part of a single resultant effect, the applicant did not go so far as to submit that there was no evidence to support the finding made by the Tribunal. I note also that the evidence referred to by the applicant is considered by him in isolation of the remainder of the witness’ evidence. In any event, that there may have been such other evidence does not amount to an error of law: Waterford at 77, Rajalingam at [146]. Moreover, that evidence does not establish any misconstruction of “injury” by the Tribunal. Second, contrary to the applicant’s submission, the Tribunal did not address the wrong question. The submission, which was based on the assertion that the Tribunal acted upon an incorrect description of its task given by the respondent, is not borne out on a proper reading of its reasons. While the applicant submitted that the Tribunal appeared to adopt the approach that if the CPS was related to the shoulder injury it necessarily was not an injury in itself, the applicant did not identify any passage in the reasons in support of that submission. To the contrary, the Tribunal correctly identified the relevant principles and against that background, addressed the question whether the applicant’s CPS was an injury within the meaning of the SRC Act. This recitation of principles included the passage from Canute which makes clear there is no basis for distinguishing between primary and secondary injuries. Moreover, the respondent’s submission which underpins this aspect of the applicant’s argument, (that the applicant did not suffer an injury characterised by pain but rather he suffered pain because he has an injury to the right shoulder), was a factual submission.