The Broken Hill Pty Co Ltd v Jessop, Terrence Maxwell
[1998] FCA 207
•4 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 878 of 1997
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
THE BROKEN HILL PROPRIETARY COMPANY LIMITED
(ACN 004 028 077)
AppellantAND:
TERRENCE MAXWELL JESSOP
RespondentJUDGES:
RYAN, HILL and EMMETT JJ
DATE OF ORDER:
4 MARCH 1998
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS:
That the appeal be dismissed.
That the appellant pay the respondent’s costs of the appeal, such costs to be taxed in default of agreement.
Note:Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 878 of 1997
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
THE BROKEN HILL PROPRIETARY COMPANY LIMITED
(ACN 004 028 077)
AppellantAND:
TERRENCE MAXWELL JESSOP
Respondent
JUDGES:
RYAN, HILL and EMMETT JJ
DATE:
4 MARCH 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
RYAN J: This is an appeal from an order of a single Judge of the Court remitting to the Administrative Appeals Tribunal (“the Tribunal”), an application for compensation pursuant to the Seafarers’ Rehabilitation and Compensation Act 1992 (“the Act”). The issues raised by the appeal are in short compass. It is not disputed that the respondent, Mr Jessop, on 5 September 1994 struck his right knee against the open door of a dishwashing machine while working as a cook on the ship Iron Carpentaria operated by the appellant, The Broken Hill Proprietary Company Limited.
Shortly after that incident the respondent was put ashore and since then has been examined or treated by a large body of medical practitioners and other health workers, including orthopaedic surgeons, neurologists, three specialists in rehabilitation medicine, a rheumatologist and two psychiatrists. After reviewing evidence received from most of those medical practitioners, either orally or in the form of medical reports, the Tribunal concluded in paragraphs 31 and 32 of its reasons:
31.Essential to accepting the diagnosis of Dr Pollack, and also that of Dr Griffith, is an acceptance of the applicant’s history of events. For reasons expressed below I do not accept the applicant’s evidence in its totality.
32.I am in no doubt that on the morning of 5 September 1994 the applicant struck his right knee on an open dishwasher door in the galley of the Iron Carpentaria. As indicated above there is, however, conflicting evidence as to the sequelae of that blow.
The following paragraphs recite events, evidentiary discrepancies and other matters which the Tribunal apparently regarded as militating against its acceptance of the respondent as an entirely credible witness. However, with the exception of paragraph 39 where it is accepted that the respondent climbed down the pilot ladder to the launch which was to put him ashore, and was not lowered by means of a harness as the respondent claimed, paragraphs 33 to 42 do not indicate which parts of the respondent’s evidence were accepted and which were rejected. The concluding paragraphs of the Tribunal’s reasons are in these terms:
43.During the course of his evidence Dr Pollack presumably said that he had discussed the applicant’s case with Dr White as part of a multi-disciplinary pain clinic to which the applicant had been referred. He stated that Dr White had indicated that he would be prepared to revise his opinion if Dr Pollack’s diagnosis of reflex sympathetic dystrophy proved to be correct. As I am not satisfied on the balance of probability that causalgia, as hypothesised by Dr Pollack, is the cause of the applicant’s present disability I need not consider what Dr White’s revised opinion may have been had it been adduced by either party.
44.Taking into account all of the evidence I find that the applicant’s behaviour aboard the Iron Carpentaria was so abnormal that the Master decided that in the interests of safety, both of the vessel and its crew, and that of the applicant, he should be evacuated from the vessel. To this end the Master turned the vessel around and back tracked towards Portland in Victoria, a step which was not taken lightly. Since that time the applicant has continued to experience symptoms out of proportion to the original injury. Medical opinion is divided but even his treating specialist Dr Pollack admits that there are no objective signs to account for a major reaction to what was minor trauma. Dr Griffith also states that there are no objective states to support his diagnosis and his opinion must be contrasted with that of Professor Holland. Dr Pollack has an hypothesis as to cause but is not confident as to this being the explanation for the applicant’s pain. I do not profess, in the plethora of medical reports before me, to adduce to what is the cause of the applicant’s pain but I am not satisfied that its cause is the minor blow suffered by the applicant aboard the Iron Carpentaria on 5 September 1994. The decision under review will, therefore, be affirmed.
The learned primary judge imputed to the Tribunal an error of law constituted by a failure contrary to s 43(2B) of the Administrative Appeals Tribunal Act 1975 to “include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based.”
I accept what was said by Lockhart J and the other authorities collected by the same learned judge in Polites v Commissioner of Taxation (1988) 2 ATC 5029, where it was observed at 5032:
I repeat what has been said by other members of this Court in the cases mentioned below and by myself on more than one occasion, that when this Court hears appeals from administrative tribunals - which are the bodies entrusted by Parliament with the task of reviewing decisions of a particular administrative character - the Court should approach its tasks sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole. I agree with the view expressed Fisher J in Blackwood Hodge (Aust) Pty Ltd v Collector of Customs, (NSW) (No 2) (1980) 3 ALD 38 at p 49 with respect to a decision of the Administrative Appeals Tribunal relating to the Customs tariff.
And then his Honour quotes from that judgment:
It is my firm view that this Court when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of this nature, should adopt a restrained approach. Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision. This does not mean that when an error of law is identified, the Court should be reluctant to intervene. In fact, it is under a duty to do so. Rather it should heed the comments of Davies LJ (as he then was) in R v Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No 2) [1966] 2 QB 31 at 50.
I should like to echo the words of my Lord, Lord Denning MR, in saying that I deprecate the practice, and hope it would not continue, of attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by the various bodies and authorities set up under the Act of 1946.
As Lord Radcliffe said in Edwards v Bairstowe [1966] AC 14 at 38:
...by the system that has been set up the commissioners are the first tribunal to try and appeal and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The court is not a second opinion, where there is reasonable ground for the first.
To those references Lockhart J added Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 per Lockhart J at 251; per Sheppard J at 255; Steed v Minister for Immigration (1981) 4 ALD 126 per Fox J at 127 and Federal Commissioner of Taxation v Cainero 88 ATC 4427; (1988) 19 ATR 1301 per Foster J at ATC 4430-4431; ATR 1305-1306 and Lockhart J said:
I agree with all those statements made by members of this Court from time to time.
I content myself with noting that in Federal Commissioner of Taxation v Cainero (supra), Foster J referred to Bisley Investment Corporation v Australian Broadcasting Tribunal (supra) and continued at 4431:
Quite clearly, in Bisley, the Full Court (Lockhart, Sheppard and Morling JJ) were of the view that sec 43(2B) imposed no requirement upon the Tribunal in its statement of reasons to refer specifically to all findings of fact made by it. It was obviously regarded as sufficient if such findings could reasonably be inferred from the Tribunal’s statement of reasons in the context in which they were given. As Sheppard J said (at p 255):
The section does not impose upon the Tribunal, which is often composed of members who are not trained in the law, any standard of perfection. I consider the provisions of the section to be directory rather than mandatory. Substantial compliance is what is required and clearly that is here present.
In the present case, the learned primary Judge after noting that the Tribunal is to be assumed to have found that the respondent suffered an “injury” within the meaning of the Act, went on to observe:
However, the Tribunal did not anywhere in its reasons expressly address the issue of whether such injury to the applicant’s knee resulted in his “incapacity for work” or “impairment” within the meaning of the Act.
The ultimate finding of the Tribunal was that it was not satisfied that the cause of the applicant’s pain was the minor blow to his knee which he sustained on 5 September 1994. The pain to which the Tribunal refers in reaching such conclusion is presumably the pain which, on the applicant’s case, he has suffered since 5 September 1994. It is not entirely clear whether the Tribunal intended by so expressing its conclusion, to indicate that it found that the applicant has in fact suffered such pain. However, in the absence of an express finding to the contrary, the better view of its conclusion appears to be that it did. There is certainly no finding by the Tribunal that the applicant did not suffer the pain that he described in his evidence before the Tribunal, and to the numerous medical practitioners whom he has seen, or alternatively that, although he suffered some pain, it was pain in a lesser degree than that which he described.
In my view that analysis of the Tribunal’s reasons makes it clear that her Honour did not consider that the necessary findings of fact could reasonably be inferred from the Tribunal’s statement of reasons as was held to be open in Federal Commissioner of Taxation v Cainero (supra). Immediately after the passage from her Honour’s reasons which I have just quoted, there follows a sentence which has been strongly criticised by Mr Hislop QC, who appeared with Mr Wallace for the appellant. That sentence was in these terms:
If as it appears that it did, the Tribunal accepted that the applicant has, since the time of the blow, suffered the pain that he has alleged that he has suffered, this of itself offers some support for a conclusion that the blow caused such pain.
That observation was said to be contrary to the express finding of the Tribunal in paragraph 39 of its reasons to which I have already referred. However, that paragraph resolved only the conflict as to whether the respondent climbed down or was lowered into the launch. It contains nothing to negate the acceptance by the Tribunal that the respondent has suffered from pain.
On the other hand there are numerous passages in the Tribunal’s reasons which are consistent with an acceptance that the respondent has suffered from the pain which he has claimed. I instance, without pretending to be exhaustive, paragraphs 4, 5, 8, 10, 27 and 43 where it was noted:
As I am not satisfied on the balance of probability that causalgia as hypothesised by Dr Pollack is the cause of the applicant’s present disability. I need not consider that Dr White’s revised opinion may have been - had it been adduced by either party; (emphasis added).
See also paragraph 44, which I have already quoted, where it was observed:
...the applicant has continued to experience symptoms out of proportion to the original injury. Medical opinion is divided but even his Treating Specialist, Dr Pollack, admits that there are no objective signs to account for a major reaction to what was minor trauma.
Her Honour then referred to the starting point for investigation of causation of an injury suggested by Rich ACJ in Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538 at 563:
I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive influence which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology.
Her Honour also referred in the same context to Tubemakers of Australia v Fernandez (1976) 10 ALR 303 (see per Mason J, with whom Barwick CJ and Gibbs J agreed, at 311-312 and per Murphy J at 312). I do not understand her Honour to be asserting that it was mandatory, as a matter of law, for the Tribunal to have adopted the same starting point in this case. Rather she was suggesting that the prima facie availability of such a starting point made it incumbent upon a Tribunal concerned to comply with s 43(2B) of the Administrative Appeals Tribunal Act to make clear the findings of fact which led it to reason differently. That suggestion was made clear in this paragraph from the reasons below:
In my view, having regard to the express findings of the Tribunal, and those which are apparently to be inferred from its reasons, the Tribunal was obliged to express its reasons for not being satisfied that the applicant’s pain was caused by the blow to his knee on 5 September 1994. The reasons of the Tribunal do not, in my view, sufficiently convey to a reader the Tribunal’s reasoning process in this regard. It cannot be overlooked, first, that there was nothing before the Tribunal to suggest that the applicant had suffered any damage to his right knee or leg before the blow on 5 September 1994, or any relevant fresh injury thereafter, and secondly, that expert medical evidence before the Tribunal showed that the inference of the causal connection between the blow to the applicant’s knee on 5 September 1994 and, at least, certain of the pain described by him was open. The possibility that all of the pain described by the applicant might not have the same aetiology does not appear to have been considered by the Tribunal, although this possibility is clearly raised by some of the medical reports.
The learned primary Judge also noted that:
...even if it be accepted that none of the pain which was of ongoing concern to the applicant was caused by the blow to this knee on 5 September 1994, the Tribunal was obliged to consider whether any relevant incapacity for work within the meaning of the Act resulted from such blow. Its reasons for decision do not indicate that it did so.
Counsel for the appellant argued that once the Tribunal had pronounced itself not satisfied that “the cause of the applicant’s pain and ... is the minor blow suffered by the applicant on board the Iron Carpentaria on 5 September 1994” no occasion arose for considering incapacity from work within s 26(1) of the Act. I disagree. Once it is accepted that some injury has been sustained as it has been accepted in respect of Mr Jessop an inquiry must necessarily be undertaken as to whether that injury has resulted in any, and if so what, incapacity for work.
There was some discussion in argument of the existence or otherwise of an onus of proof on an applicant for compensation in circumstances like the present. We have been referred to Australian Telecommunications Commission v Barker (1990) 12 AAR 490 where it was suggested that it is incorrect to speak of such an onus being imposed on an applicant. However, Counsel for the appellant suggested that the existence of an onus derives support from Muratore’s case in (1978) 141 CLR 296. It is clear that from the penultimate sentence of the Tribunal’s reasons in the present case that the Tribunal regarded the present respondent as sustaining an onus because it expressed itself “not satisfied” that the cause of the applicant’s pain was the minor blow which he suffered on board the vessel. However, in the view which I take of the matter and because of the deficiencies which I, like the learned
primary Judge, have perceived in the reasons of the Tribunal, it is unnecessary for the purposes of the present case to resolve that controversy.
In the result I can detect no error in the reasons below. I would therefore dismiss the appeal and affirm the order remitting the matter to the Tribunal differently constituted to be heard and determined according to law. Accordingly, it is unnecessary to consider the respondent’s notice of contention. I would order that the appellant pay the respondent’s costs of the appeal.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate:
Dated: 4 March 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 878 of 1997
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
THE BROKEN HILL PROPRIETARY COMPANY LIMITED
(ACN 004 028 077)
AppellantAND:
TERRENCE MAXWELL JESSOP
Respondent
JUDGES:
RYAN, HILL and EMMETT JJ
DATE:
4 MARCH 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HILL J: I am grateful for the statement of facts given by the learned primary judge and I agree with the reasons therein expressed and the orders contemplated. I would like however to make the following additional comments.
I have been troubled by the case. I appreciate the need to balance on the one hand a failure to give reasons or make findings of fact and on the other hand the need for this Court to entertain a restrained approach in the way in which it considers and analyses the reasons of the Administrative Appeals Tribunal. It is fair to say, and counsel for the applicant made the point more than once, that the reasons were far from elegant. However, I think a reading of them illustrates the following propositions.
The Tribunal did find that there was an accident in the way in which the worker said that there was.
Although it is possible to argue to the contrary, it seems clear to me that the Tribunal accepted that the worker suffered pain.
There was no suggestion either in the way the case was run, in the evidence or in the Tribunal's reasons and that any pain suffered by the worker arose in any way other than as a result of the accident.
The Tribunal decided but gave no reasons for this that the cause of the pain did not flow out of the blow to the knee resulting from the original accident.
The Tribunal did not deal with the specific question which was before it namely, whether the worker was impaired or suffered impairment, whether or not in pain and if so whether that impairment resulted in incapacity for work. It may well be that it did not do so because it was concerned only with the question of pain.
The only reason given for not accepting the medical evidence favourable to the worker was that it depended upon the worker's own account, although the Tribunal did not make any findings that would assist in knowing what evidence it was that it rejected on the part of the worker. For example, the medical evidence discloses that the worker walked on crutches for some very long period of time. There is no suggestion that that was a false statement and yet it certainly would have a relevance to the medical evidence and indeed the whole case.
There is no dispute between the parties that it is an error of law where a tribunal bound to state reasons for its decision fails to express its findings and reasons for the decision in a way that is adequate for a proper understanding of the issues and outcome of the case, Dornan v Riordan (1990) 24 FCR 564, and the authorities therein cited.
There was some discussion in the course of the appeal, although it bore no relation to any ground of appeal, on the question of whether onus of proof was a matter relevant to the Tribunal. As the primary judge has already said, that is a matter that was considered by a Full Court of this court comprising Davies and Gummow JJ and myself in Australian Telecommunications Commission v Barker (1990) 12 AAR 490, where the Full Court said at 495 that common law concepts of onus were rarely appropriate for administrative appeals, even in cases involving compensation.
Muratore's case, Commonwealth v Muratore (1978) 141 CLR 296 was discussed in the course of that judgment but the court there, as I do here, found it unnecessary to decide to what extent Muratore's case may have application in a particular circumstance. It is not a matter which properly arises in this appeal and one that should await an appropriate case for determination.
I am of the view that the Tribunal did fail to comply with its obligations to find facts and give reasons in the areas that I have already indicated. As a result not without some reservations as to whether the restrained approach suggested by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises PtyLtd (1993) 43 FCR 280 at 287 and approved by the High Court Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 has been satisfied fully, I agree that the appeal should be dismissed with costs and I agree with the orders that have already been proposed.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.
Associate:
Dated: 4 March 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 878 of 1997
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
THE BROKEN HILL PROPRIETARY COMPANY LIMITED
(ACN 004 028 077)
AppellantAND:
TERRENCE MAXWELL JESSOP
Respondent
JUDGES:
RYAN, HILL and EMMETT JJ
DATE:
4 MARCH 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
EMMETT J: I agree that the appeal should be dismissed for the reasons advanced by Ryan J. I also agree with the observations made by Hill J. I only wish to add that no issue has been taken concerning the orders made by Branson J as to a rehearing by a differently constituted Tribunal and we therefore have expressed no views about that question. Subject to that abovementioned I agree with the orders proposed.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 4 March 1998
Counsel for the Appellant: Mr J D Hislop, QC
with Mr J R WallaceSolicitors for the Appellant: Sparke Helmore Counsel for the Respondent: Mr J P Pender Solicitors for the Respondent: Paul A Curtis & Co Date of Hearing: 4 March 1998 Date of Judgment: 4 March 1998
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