Szajna v Australian Postal Corporation

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FEDERAL COURT OF AUSTRALIA

Szajna v Australian Postal Corporation [2014] FCA 1136

Citation: Szajna v Australian Postal Corporation [2014] FCA 1136
Appeal from: Szajna and Australian Postal Corporation [2013] AATA 898
Parties: ANTHEA SZAJNA v AUSTRALIAN POSTAL CORPORATION
File numbers: QUD 7 of 2014
Judge: RANGIAH J
Date of judgment: 24 October 2014
Corrigendum: 26 February 2015
Catchwords:

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether Tribunal made error of law –parties’ conduct contributed to Tribunal’s error – appeal allowed

WORKERS’ COMPENSATION – injury in the course of employment – meaning of injury – sudden disturbance of normal physiological state – whether Tribunal erred in finding an inevitable consequence of an underlying disease is not an injury  
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 5B(1), 14(1), 64(1)
Cases cited: Accident Compensation Commission v McIntosh [1991] 2 VR 253 cited
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 applied
Comcare v Etheridge (2006) 149 FCR 522 distinguished
Comcare v Martinez (No 2) (2013) 212 FCR 272 cited
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 cited
Estate of Eduardo Ferro and Australian Postal Corporation [2010] AATA 119 overruled
Health Insurance Commission v Van Reesch [1996] FCA 1118; (1996) 45 ALD 302 cited
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 cited
Hockey v Yelland (1984) 157 CLR 124 cited
Hope v Bathurst City Council (1980) 144 CLR 1 cited
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 cited
Kennedy Cleaning Services Limited v Petkoska (2000) 200 CLR 286 cited
Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186 cited
O’Kane v Comcare [2014] FCA 341 cited
O'Neill v Lumbey (1987) 11 NSWLR 640 cited
Shi v Migration Agents Registration Authority (2008) 235 CLR 286 cited
TheCommonwealth v Ockenden (1958) 99 CLR 215 cited
Zickar v MGH Plastic Industries Pty Limited (1995) 187 CLR 310 explained
Date of hearing: 31 July 2014
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 99
Counsel for the Applicant: Mr S Keim SC with Mr M Black
Solicitor for the Applicant: Turner Freeman Lawyers
Counsel for the Respondent: Mr Geoffrey Johnson SC with Mr Gregory Johnson
Solicitor for the Respondent: Sparke Helmore Lawyers

FEDERAL COURT OF AUSTRALIA

Szajna v Australian Postal Corporation [2014] FCA 1136

CORRIGENDUM

1.In paragraph 78, line 6 of the Reasons for Judgment, remove the duplicated word “that” before the word “Ferro”.

2.In paragraph 79, line 6 of the Reasons for Judgment, remove the duplicated words “did not” before the word “state”.

3.In paragraph 90, line 3 of the Reasons for Judgment, remove the word “of” after the words “ordinary meaning”.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:       

Dated:       26…

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Details
Case
[2014] FCA 1136
Decision Date

CaseChat Overview and Summary

In the case of Szajna v Australian Postal Corporation, the Full Bench of the Federal Court was asked to determine whether the Full Bench of the Administrative Appeals Tribunal (AAT) erred in its decision that the sudden cardiac event experienced by the deceased, Mr Szajna, was not an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The consequence of this was that the AAT affirmed the respondent’s decision to deny the applicant compensation under the Workers’ Compensation Act. The Full Bench of the Federal Court found that the AAT did indeed make an error of law in its reasoning and allowed the appeal. The Full Bench found that the AAT had misconstrued the term "injury" within s 5A(1) of the SRC Act by excluding the ventricular fibrillation suffered by Mr Szajna from the concept of "injury" on the basis that it was the inevitable consequence of his underlying coronary artery disease. The Full Bench set aside the AAT’s decision and remitted the case to the AAT to be heard and decided again.

The Full Bench of the Federal Court held that the AAT had misconstrued the term "injury" within s 5A(1) of the SRC Act. The AAT had concluded that the ventricular fibrillation suffered by Mr Szajna was not an injury because it was the inevitable consequence of his underlying coronary artery disease. The Full Bench found that this conclusion was an error of law because it imposed a principle of law that does not exist. The Full Bench held that the AAT was entitled to consider the inevitability of the ventricular fibrillation as a factor in determining whether it was an injury, but it was not entitled to conclude that it was not an injury solely on the basis of its inevitability. The Full Bench found that the AAT’s reasoning was flawed because it did not consider the possibility that the ventricular fibrillation could have been caused by factors other than the underlying disease. The Full Bench also found that the AAT had not properly considered the evidence of Dr Kenneth Hossack, who had given evidence that many people with coronary artery disease do not experience ventricular fibrillation over the course of their lives. The Full Bench held that the AAT’s conclusion that the ventricular fibrillation was the inevitable consequence of Mr Szajna’s coronary artery disease was not supported by the evidence. The Full Bench held that the AAT had erred in law by concluding that the ventricular fibrillation was not an injury within s 5A(1) of the SRC Act.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 17 December 2013 be set aside and the case remitted to the Tribunal to be heard and decided again.

3. There be no order as to the costs of the appeal.

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

Background

Background to the litigation

In order to place the parties’ arguments into context, it is necessary to set out something of the background, the legislative provisions, the submissions made to the Tribunal and the Tribunal’s reasons for its decision. Background Mr Szajna was employed as a mail officer at the respondent’s facility at Underwood in Queensland. At about 6 pm on 7 February 2012, he was found by a colleague collapsed on the floor, purple in the face, unresponsive and not breathing. He was attended to by ambulance officers, but their efforts were unsuccessful and he was pronounced dead at about 6.55 pm. An autopsy report indicates that Mr Szajna had coronary atherosclerosis of two of the major arteries to his heart. Coronary atherosclerosis is also called coronary artery disease. Coronary artery disease occurs when material builds up in the walls of the blood vessels supplying the heart muscle. This limits the amount of blood able to flow through the vessels, which can result in a lack of oxygen and other nutrients being supplied to the heart muscle. The ventricle can quiver and cease to contract effectively to expel blood. This abnormal heart rhythm is known as ventricular fibrillation. Blood flow to the brain can stop and death ensues. Professor Michael O’Rourke, a cardiologist who gave evidence before the Tribunal, stated that this is what happened to Mr Szajna. Professor O’Rourke’s opinion was that the disease in Mr Szajna’s left anterior descending coronary artery would have progressed and closed completely within the next two to three years if he had not died. Professor O’Rourke considered that Mr Szajna was inevitably destined to suffer ventricular fibrillation at some point in time if he lived long enough. It so happened that he suffered ventricular fibrillation on 7 February 2012. Dr Kenneth Hossack, also a cardiologist, concurred that Mr Szajna had suffered ventricular fibrillation. He did not accept that Mr Szajna’s episode of ventricular fibrillation was necessarily caused by his underlying coronary artery disease. He considered that the ventricular fibrillation could have been triggered by a number of other factors which were not investigated. He also stated that many people with coronary artery disease do not experience ventricular fibrillation over the course of their lives, so ventricular fibrillation was not an inevitable consequence of Mr Szajna’s coronary artery disease. The Tribunal decided that Mr Szajna had suffered a heart attack which preceded and precipitated his death. It found that “the medical evidence established that heart attack is more precisely described as ventricular fibrillation, or cardiac arrest”. While the Tribunal accepted Dr Hossack’s evidence that many people with coronary artery disease will not develop ventricular fibrillation during their lives, it accepted Professor O’Rourke’s opinion that Mr Szajna would inevitably experience ventricular fibrillation at some point if he lived long enough. It decided, on this basis, that the ventricular fibrillation was the inevitable consequence of his underlying coronary artery disease. It concluded that the ventricular fibrillation was not an “injury” within s 5A(1) of the SRC Act. The consequence is that the applicant was not entitled to compensation under s 14(1) of the SRC Act.The legislation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Senior counsel for the respondent continued:In paragraph 11 of my friend’s submissions, he does say that the only live issue is whether the ventricular fibrillation is the sole inevitable cause of the ravages of the disease. We accept that.The Tribunal’s decision The Tribunal found against the applicant. In its reasons, under the heading “The question we must answer”, the Tribunal said:2.…The outcome of the proceedings turns on whether the ventricular fibrillation that occurred at work on 7 February 2012 can be regarded as an injury within the meaning of s 5A of the Act – in particular, whether it is an injury within the meaning of s 5A(1)(b), which refers to:…an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment…3.There was no dispute that ventricular fibrillation meets one of the requirements the courts have said are inherent in the definition in s 5A(1)(b) – namely, that the employee suffered something in the nature of “a disturbance of the normal physiological state”: Australian Postal Corporation v Burch (1998) 85 FCR 264 at 269 per Heerey, Sundberg and North JJ. But there is a second question that must be asked, and which will determine the outcome of these proceedings: was the ventricular fibrillation that Mr [Szajna] experienced on 7 February 2012 an inevitable consequence of his underlying coronary artery condition? If the answer is “yes”, Mr [Szajna] did not suffer from an injury as that term is defined in s 5A of the Act. In substance, that means Mr [Szajna’s] condition is wholly attributable to his underlying condition rather than anything occurring in his workplace, which means his employer is not liable to compensation to Mrs [Szajna] for her husband’s untimely death. If ventricular fibrillation was not inevitable, the applicant will succeed.(Underlining added.) The Tribunal then considered the medical evidence and accepted Professor O’Rourke’s explanation that Mr Szajna’s coronary artery disease compromised the heart so that at some indeterminate point the heart muscle must malfunction and ventricular fibrillation must occur. It accepted Professor O’Rourke’s evidence that even if it had not occurred on 7 February 2012, it was inevitable that Mr Szajna would have experienced ventricular fibrillation at some point, provided he did not first die from another cause. The Tribunal then concluded:13.The law requires that we answer a precise question that may strike a lay observer (and the medical experts, for that matter) as counter-intuitive. We accept this may be one of those cases where it is difficult to follow how one fits medical evidence within legal rules. But that is what we must endeavour to do. Having asked and answered the question put to us, we must affirm the decision under review.The grounds of appeal The applicant’s notice of appeal identifies the following questions as questions of law arising in the appeal:1.Was it open to the Tribunal to conclude, on the facts as found by the Tribunal, that the ventricular fibrillation suffered by the Deceased was not an “injury” within the meaning of s 5A(1) of the SRC Act?2.Did the Tribunal misconstrue the term “injury” as it appears in s 5A(1) of the SRC Act by imposing a test of whether the ventricular fibrillation suffered by the Deceased was wholly attributable to his underlying coronary artery condition?3.Did the Tribunal misconstrue the term “injury” as it appears in s 5A(1) of the SRC Act by excluding the ventricular fibrillation suffered by the Deceased from the concept of “injury” on the basis that [the] Deceased would have experienced ventricular fibrillation at some point in the future in the absence of other events?

Ratio Decidendi

Legal Principle Established

The respondent submits that:(a)the real point of contention before the Tribunal was whether Professor O’Rourke was correct in his opinion that ventricular fibrillation was the inevitable consequence of the progression of Mr Szajna’s coronary artery disease;(b)the issue of inevitability was posed by the parties, and answered by the Tribunal, as a question of fact, not law;(c)the question of whether there was an “injury” is itself a question of fact, not law;(d)the Tribunal was entitled to find, as a matter of fact, that the inevitable result of an underlying disease did not fall within the word “injury”; and(e)as the applicant cannot demonstrate an error of law, the appeal cannot succeed.Consideration The Tribunal’s function was to decide whether the decision made by the respondent to affirm its determination that the applicant was not entitled to compensation was the correct decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140] per Kiefel J. The only contentious issue before the Tribunal was whether Mr Szajna had suffered an “injury” within the meaning of that term in ss 5A(1) and 14(1) of the SRC Act. The approach of both parties was that this issue would be determined solely by the Tribunal answering the question of whether the ventricular fibrillation experienced by Mr Szajna on 7 February 2012 was the inevitable consequence of his underlying coronary artery disease. The parties concurred that if the answer was “yes”, Mr Szajna had not suffered an “injury” within ss 5A(1) and 14(1) and the applicant was not entitled to compensation. The Tribunal did what it was asked to do by the parties. It decided the question that they posed. Having decided that question, it concluded that there was no “injury” within ss 5A(1) and 14(1), as the parties agreed it must, and affirmed the decision under review. The applicant now submits that having concluded that Mr Szajna’s ventricular fibrillation was an inevitable consequence of his underlying coronary artery disease, the Tribunal made an error of law by concluding that it was then required as a matter of law to decide that Mr Szajna had not suffered an “injury”. The substance of the applicant’s argument is that the Tribunal applied a principle of law that does not exist. The purported principle is that a sudden physiological change that is an inevitable consequence of an underlying disease cannot be an “injury” within s 5A(1)(b) of the SRC Act. The applicant’s argument is a deeply unattractive one because she relies upon an alleged error that she accepts the parties induced the Tribunal to make. As unattractive as that argument may be, a decision of a Tribunal which is wrong in law, even though the error was substantially contributed to by the party bringing the appeal, may be overturned. The conduct of the applicant’s case before the Tribunal goes to the Court’s discretion as to whether to grant relief, rather than the question of whether an error of law was made: Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 35 ALR 186 at 195; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 231-233.