van Oostveen, William v Comcare

[1998] FCA 60

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 179 of 1996

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	WILLIAM VAN OOSTVEEN Applicant
AND:	COMCARE Respondent
JUDGE:		RYAN J
DATE OF ORDER:		9 FEBRUARY 1998
WHERE MADE:		MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the application be dismissed.

1. That the applicant pay the respondent’s costs, including any reserved costs, 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
QUEENSLAND DISTRICT REGISTRY	QG 179 of 1996

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE
ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	WILLIAM VAN OOSTVEEN Applicant
AND:	COMCARE Respondent

JUDGE:	RYAN J
DATE:	9 FEBRUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an application by way of appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent, Comcare Australia (“Comcare”) disallowing a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).

The applicant, who had been an employee of Australian Construction Services (“ACS”) from 21 November 1989 until 20 March 1992, lodged three distinct claims for compensation:

(a)on 30 November 1993 for the skin condition, lichen planus;

(b)on 23 May 1994 for stress and anxiety; and

(c)on 19 July, 1994 for injury to his back, allegedly arising out of a motor vehicle accident in 1990.

The Tribunal in its reasons for decision (“the reasons”) after reviewing the evidence, much of it medical, found the applicant not to be a witness of truth, and went on to find that there was no basis for a claim that work-related stress had resulted in his being incapacitated for work.  The Tribunal also concluded that there was no evidence to indicate that the skin condition lichen planus, from which the applicant periodically suffered, had been worse during the period of his employment at ACS.  While the Tribunal accepted that there was a possible causal relationship between lichen planus and stress, it did not find that any alleged increase in the applicant’s level of stress could be attributed to his work.  Any such increase in stress it found was rather a result of the applicant’s withdrawing from a methadone program.  The Tribunal also found that no link had been established between a 1990 motor vehicle accident in which the applicant had been involved and the back pain which he claimed in July 1994 to have suffered.  Consequently the Tribunal affirmed the decisions to refuse compensation to the applicant.

Mr Searle of Counsel for the applicant did not make a direct attack on the Tribunal’s findings on the applicant’s claim for compensation for injury to his back, confining his submissions to the findings of the Tribunal on the issues of work-related stress and lichen planus.  He submitted first that the Tribunal had erred in law in concluding that the stress and anxiety which the applicant claimed to have suffered had not been work-related.  The Tribunal’s reasoning on that issue was:

31.      The Tribunal did not find the applicant to be a truthful witness.  There is little doubt that throughout the period of the applicant’s employment at ACS, he was on a methadone program, although it would appear that that information was not made available to a number of medical practitioners to whom he had been sent for assessment or management.  In spite of his own evidence, the Tribunal accepts the evidence of Dr Freed that the applicant has a long history of substance addiction and the Tribunal does not accept the explanation that he had used heroin solely to be able to be put on to the methadone program for treatment of his nervous stress.  It is clear from the evidence that the application [sic] had been subjected to many episodes of physical trauma, with possible brain damage, during the period 1978 to 1992 and there was no evidence that any of the head injuries had occurred as a result of work related trauma.  Having heard the evidence of Dr Gorham and Ms Conrad, and having considered the medical evidence and listened to the evidence of the applicant, the Tribunal is unable to accept that the current condition of the applicant has resulted from work related stress during the period of his employment at ACS, between 1989 and 1992.  Those medical reports, which have indicated a possible link between events at work and the described stress have relied entirely on an inaccurate history given by the applicant. In this regard it should be noted that we have already stated earlier that we did not find the applicant to be a truthful witness.  We accept the evidence of Ms Conrad that the applicant had submitted his resignation on a voluntary basis and we note that a certificate provided by Dr Scragg a few days prior to that resignation, had stated that the applicant was unfit for work as a result of withdrawal from the methadone program.  No other basis for incapacity was stated and no other medical evidence has been produced to indicate that the applicant has been otherwise incapacitated for work since that time.  Also, as Dr Frame had stated in his report of 27 September 1991, it was very important that the applicant remain in employment.  Dr Frame clearly did not believe that the applicant was then incapacitated for work.  As withdrawal from the methadone program was in no way related to his work with ACS, we find that there is no basis for his claim that work related stress has resulted in incapacity for work.  The decision under review will therefore be affirmed.

Mr Searle contended that three errors of law were disclosed by the paragraph just quoted.  In a written submission it was argued, first, that the Tribunal had erred in making no findings to sustain the conclusion that the medical records relied upon to indicate a possible link between events at work and stress had “relied entirely on an inaccurate history given by the [applicant]”.  Secondly, Mr Searle submitted that the Tribunal had erred in concluding that the applicant’s stress had been caused by a withdrawal from a methadone program when there was evidence before the Tribunal that the applicant remained on a methadone program.  The third error imputed to the Tribunal was that it failed to make a finding of fact whether various episodes of physical trauma suffered by the applicant had resulted in his sustaining brain damage.  Mr Searle further submitted that the Tribunal had erred in law in concluding that there was no evidence to indicate that the applicant’s skin condition lichen planus had been caused by his employment at ACS nor that it had been worse during that period.

In Comcare Australia v Peter Wilson (unreported, 26 June 1997) I observed at 13:

It is sufficient for the purposes of s. 43(2B) of the AAT Act for the Tribunal to refer in a summary way to the evidence on which its findings of fact have been based and to allow some parts of that evidence to be gleaned by inference. The sub-section is in these terms:

Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

In Polites v Commissioner of Taxation [1988] 2 ATC 5029 Lockhart J noted, at 5032:

I have observed a distinct and growing tendency in this Court when appeals are brought from administrative tribunals including appeals on a question of law from the Administrative Appeals Tribunal under subsec. 44(1) of the Administrative Appeals Tribunal Act, for the Court to be asked to construe the tribunal’s reasons for its decision minutely and finely and with an eye keenly attuned to the perception of error.  The Administrative Appeals Tribunal is required by para. 43(2B) of the Administrative Appeals Tribunal Act to include in its written reasons for decision “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”.  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 task 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 by Fisher J. in Blackwood Hodge (Aust.) Pty. Ltd. v. Collector of Customer (N.S.W.) (No. 2) (1980) 3 A.L.D. 38 at p. 49 with respect to a decision of the Administrative Appeals Tribunal relating to the Customs Tariff:

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 Q.B. 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. Bairstow [1966] A.C. 14 at 38:

...by the system that has been set up the commissioners are the first tribunal to try an 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.

See also Bisley Investment Corporation & Anor v. Australian Broadcasting Tribunal & Anor (1982) 40 A.L.R. 233 per Lockhart J. at p. 251, per Sheppard J. at p. 255; Steed v. Minister for Immigration (1981) 4 A.L.D. 126 per Fox J. at p. 127 and F.C. of T. v. Cainero 88 ATC 4427; (1988) 19 A.T.R. 1301 per Foster J. at ATC pp. 4430-4431; A.T.R. pp. 1305-1306. I agree with all those statements made by members of this Court from time to time.

In Federal Commissioner of Taxation v Cainero [1988] 2 ATC 4,427 Foster J at 4,431 referred to Bisley Investment Corporation v Australian Broadcasting Tribunal and continued:

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.

It is clear from the reasons in the present case that the Tribunal did not find the applicant to be a truthful witness.  The Tribunal made the following findings at paragraph 26:

On the first day of the hearing, in cross-examination, the applicant agreed that he had been on the methadone program during the period 1990 to 1992 and he said that he had been on methadone because of stress.  He denied ever having been on heroin, LSD, cocaine, speed, angel dust or other hard drugs.  When it was put to him that a report from Dr Freed, dated 24 March 1992, which was tendered as an exhibit, indicated that he had told Dr Freed that he had been on those drugs, the applicant replied that he had wanted to go on to methadone because he had been told that it was a good “suppressor of nerves”. He denied having told Dr Angelos that he had had a heroin problem.  On the next day, in further cross-examination, the applicant admitted that he had taken heroin, but he then said that he had taken heroin only so that he could qualify for the methadone program.  He said that apart from the methadone, he had not taken any drugs while working for ACS.

The Tribunal then went on to reach the conclusion which prefaced para 31 of its reasons.

It will be recalled that Mr Searle in his written submissions argued that there had been a failure to support by findings of primary fact the conclusion reached later in the same paragraph that “those medical reports which have indicated a possible link between events at work and the described stress have relied entirely on an inaccurate history given by the applicant”.

However, I do not consider it to be incumbent on the Tribunal to indicate, even in a summary way, its findings on each of the pieces of evidence of which it has taken account in making a finding of fact on which its ultimate conclusion is based.  It is sufficient, as the Full Court observed in Bisley, if “such findings could reasonably be inferred from the Tribunal’s statement of reasons in the context in which they were given”.

In my view, the proper inference to be drawn from para 31 of the reasons of the Tribunal, read in the context of the reasons as a whole, is that the Tribunal considered that those medical reports which suggested a link between the applicant’s work and the stress from which he suffered between 1989 and 1992 should be disregarded because the suggested link was premised solely on a medical history given to the relevant medical practitioner by the applicant.  Because the Tribunal had been unable to find the applicant to be a truthful witness, it could not assume that any particular medical history was entirely truthful.  It may be that instead of saying that the relevant medical reports “have relied entirely on an inaccurate history given by the applicant”, the Tribunal should have said that the reports materially relied on a history given by the applicant which was unreliable.  However, as Burchett J observed in Dodds v Comcare (1993) 31 ALD 690 at 691:

But it is the substance of the obligation that matters.  Indeed, as Lord Sumner pointed out in S S Hontestroom v S S Sagaporack [1927] AC 37 at 50, even a judge’s reasons on a question of fact will not be vitiated by “imperfections in form and expression”. Section 43 is not to be construed in a pedantic spirit, but sensibly. If the tribunal’s reasons expose the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include “findings on material questions of fact”.

In the present case, the logic of the Tribunal’s decision proceeds from the premise that expressions of medical opinion that the applicant’s stress was work-related were founded on histories obtained from the applicant.  That premise is borne out by an exhaustive examination which I have undertaken of all of the medical reports which were before the Tribunal.  Because it could not regard the applicant as a truthful witness, the Tribunal was not persuaded that those histories were accurate.  Accordingly, in the absence of evidence independently corroborating that conclusion, the Tribunal did not accept that the stress condition had been work-related.

So understood, I have been unable to discern any failure by the Tribunal to indicate expressly or by inference its findings on material questions of fact relevant to the claimed link between a presumed condition of stress and the applicant’s employment by ACS.

By way of reinforcing its lack of satisfaction of existence of a link between the alleged stress and the applicant’s work, the Tribunal went on to hypothesize that the stress condition may have been attributable to the applicant’s withdrawal from a methadone program.  Mr Searle criticized that hypothesis by pointing to evidence, largely medical, that the applicant had remained on a methadone program.  However, as I have already pointed out, the hypothesis of withdrawal from a methadone program was not essential to the logic of the Tribunal’s reasoning on the issue which it was required to resolve.

It is open to the Tribunal, by way of testing its evaluation of the evidence relevant to material findings of fact, to postulate possible alternative causes of an applicant’s medical condition.  In so doing it commits no error of law provided that there is some support in the evidence for the hypothesis which it propounds.  In the present case there was evidence of facts surrounding the applicant’s voluntary resignation on 20 March 1992 which supported the hypothesis of withdrawal from a methadone program.  Dr Scragg, who apparently examined the applicant on 18 March 1992, certified that he considered the applicant unfit for work from 18 March 1992 to 18 June 1992 as suffering from “withdrawal off methadone programme”.  It is true, as Mr Searle pointed out, that there was also evidence from Dr Scragg that to his knowledge, “the only drug of addiction the applicant had ever taken was methadone from 1990 onwards up until 1993”.  There was also in evidence a letter dated 23 March 1992 from a Dr Angelos in Queensland stating that the applicant had been on a methadone program for the last “2+ years”. As well Ms Conrad, the officer in charge of the Alexandria Operations Centre of Asset Services, a division of ACS, gave evidence that:

On 20 March 1992, Mr Van Oostveen attended my office with his mother.  He stated to me that it was his intention to resign.  Either he or his mother mentioned that Mr Van Oostveen was currently on the methadone program and that he wished to move to Queensland to live with his mother.

However, the certificate from Dr Scragg of 18 March 1992 is the best contemporaneous evidence of the applicant’s relation to methadone when he voluntarily resigned from ACS on 20 March 1992.  Moreover, the other evidence to which Mr Searle referred is not inconsistent with an attempted or shortlived withdrawal from methadone in about mid-March 1992.

The next criticism of the Tribunal’s reasoning advanced by Counsel for the applicant was founded on that part of para 31 quoted above which reads:

It is clear from the evidence that the applicant [sic] had been subjected to many episodes of physical trauma, with possible brain damage, during the period 1978 to 1992 and there was no evidence that any of the head injuries had occurred as the result of work related trauma.

That passage was pointed to as indicating a failure by the Tribunal to make necessary findings of fact as to whether any of the accepted episodes of physical trauma had, in fact, resulted in brain damage.  There was evidence before the Tribunal that various physical traumas which the applicant claimed to have experienced over some years may have resulted in a neurological or psychiatric condition causing stress to the applicant.  However, the Tribunal was able to find that only one traumatic incident had occurred during the applicant’s employment by ACS.  After finding some of the applicant’s evidence in relation to that incident to have been untrue, the Tribunal went on in para 12 of its reasons to conclude:

...The consequence of leaving the Tribunal to speculate is that we are unable to be satisfied that the assault, which occurred, on the applicant’s evidence, in the vicinity of the Fairfield railway station, has any connection whatsoever with the applicant’s employment and we are unable to be satisfied that, in fact, it arose out of his employment...

A failure by the Tribunal to include in its reasons its findings on material findings of fact contravenes the AAT Act and is an error of law; (see Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 at 329 per Hill J). In my view, however, once the Tribunal made a finding of fact that any alleged physical trauma sustained by the applicant was not work-related, it was not required to go further and make findings as to the medical basis of any possible connection between the presumed physical trauma and possible brain damage.

Mr Searle further submitted that, in relation to the applicant’s claim for the skin condition, lichen planus, the Tribunal had erred in law in concluding that there was no evidence to indicate that the lichen planus had been caused by the applicant’s employment at ACS or that it had been worse during that period.

The Tribunal set out in these paragraphs its reasons in relation to lichen planus:

32.      The applicant lodged an application on 30 November 1993 for incapacity due to the skin condition, lichen planus.  He attributed lichen planus to earlier work related stress.  As earlier noted, the applicant had voluntarily resigned his position at ACS in March 1992 and, although in his letter of resignation, he had stated that his resignation was due to his medical condition, lichen planus, and withdrawal from the methadone program.  The medical certificate, issued in March 1992 by Dr Scragg, had merely stated that his incapacity was due to withdrawal from the methadone program.

33.      It was recorded in the T-documents, particularly in the report of Dr Dwight Dowda, that the applicant had had lichen planus at least as far back as 1986 (four years prior to commencing with ACS).  In his evidence the applicant had stated that after the assaults in 1996, and also for a few months after the assault in 1989, the lichen planus had been particularly troublesome.

34.      No evidence was provided to indicate that the lichen planus had in fact been more troublesome during the period of employment of the applicant at ACS than before that employment, nor had any basis been provided to link any exacerbation of lichen planus during the period 1990-1992 with any factor other than the claim that work-related stress had caused an exacerbation of lichen planus.

35.      Although Dr Frame had stated that the exact etiology of lichen planus is unknown, he did, however, state that nervous stress is recognised as a prominent factor in its exacerbation. On the other hand, Dr Alan Freed stated that he did not believe that there was any association between stress and lichen planus.

36.      In submitting his application on 30 November 1993, for lichen planus, the applicant stated that he had first noted the illness in 1991, and he further stated that he had no similar illness affecting any part of his body previously. In subsequent evidence, it was clear that in fact the first time that lichen planus had appeared had been as far back as 1986 and the applicant had therefore not been truthful when completing the initial application for compensation for lichen planus.

37.      There is, therefore, no evidence to indicate that the lichen planus had been caused by his work and the only basis for the claim that lichen planus had been aggravated by work was the claim that lichen planus had been aggravated by stress experienced at work.

38.      No evidence was provided to indicate that the lichen planus had been worse during the period of the applicant’s employment at ACS, nor had any evidence been produced linking any claimed stress at work with exacerbations of lichen planus.  Finally, no medical evidence was provided to indicate that the applicant had an incapacity for work in 1992 because of lichen planus.

39.      Having regard to all these circumstances, the Tribunal finds no basis for the claim for compensation as a result of incapacity due to the disease, lichen planus.  The Tribunal will therefore affirm the original decision in relation to the claim for lichen planus.

Mr Searle contended that these paragraphs disclosed an error of law by the Tribunal when it concluded that there was no evidence that the lichen planus had been caused by the applicant’s work with ACS or that the lichen planus had been worse during that period.  Mr Searle submitted that there was evidence before the Tribunal that the applicant had been unable to work at ACS on a regular basis as a result of lichen planus.  Mr Searle relied upon the record of the applicant’s sick leave during the period of his employment with ACS, together with comments in the medical reports of Dr Scragg, Dr Frame and Dr Dowda.

There was evidence before the Tribunal in the form of a report from Dr Dowda, admissions by the applicant under cross-examination and concessions by his Counsel that the applicant had suffered from lichen planus from as far back as 1986.  In my view, therefore, it was open to the Tribunal to conclude that there was no evidence to indicate that the lichen planus had been caused by the applicant’s work.  The next question for the Tribunal was whether or not the lichen planus had become worse during the period of his employment.  The Tribunal concluded at para 34 “No evidence was provided to indicate that the lichen planus had in fact been more troublesome during the period of employment of the applicant at ACS than before that employment...”.  The Tribunal also concluded at para 38 that “...no evidence was provided to indicate that the lichen planus had been worse during the period of the applicant’s employment at ACS...”.

If by that passage the Tribunal is to be taken as indicating that there was no evidence that the applicant had suffered from lichen planus during his employment by ACS, then the Tribunal has erred.  The Tribunal had earlier found that the applicant was not a truthful witness and that medical reports, to the extent that they were based upon information supplied by the applicant, may have been erroneous.  Nevertheless, reports by Drs Scragg, Frame and Dowda which refer to the applicant’s suffering from lichen planus during the period of his employment can be taken to have been based, in the relevant respect, upon clinical observations.

However, on the interpretation of this part of the Tribunal’s reasons which I prefer, it is to be taken as saying only that there was no evidence of aggravation, during the applicant’s employment by ACS, of the accepted condition of lichen planus.  On an examination of the evidence against the background of that understanding of the reasons, no error of law can be demonstrated.  I uphold the submission of Ms Ford of Counsel for the respondent that the evidence related to lichen planus in 1991 did not go further than establishing that the applicant was then suffering from the condition.  It did not establish an aggravation of the condition at that time. Accordingly, whether or not its finding of fact was correct, the Tribunal committed no error of law in this respect.  It was not submitted by Mr Searle, nor was it contended before the Tribunal, that the applicant’s lichen planus was caused otherwise than by work-related stress.  The Tribunal accepted a possible causal connection between lichen planus and stress when it noted in para 35 of its reasons that:

Although Dr Frame had stated that the exact etiology of lichen planus is unknown, he did, however, state that nervous stress is recognised as a prominent factor in its exacerbation. On the other hand, Dr Alan Freed stated that he did not believe that there was any association between stress and lichen planus.

Since the Tribunal had already found as a fact that the applicant had not been subjected to work-related stress, it followed that any aggravation of the lichen planus, had the Tribunal been compelled to find that it had occurred during the relevant period, was not work-related.

For these reasons the applicant has failed to make out any of the errors of law which he imputed to the Tribunal.  Accordingly, the application must be dismissed with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            

Counsel for the Applicant:	Ms E Ford
Solicitors for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr P K Searle
Solicitors for the Respondent:	Dale & Fallu
Date of Hearing:	23 April 1997
Date of Judgment:	9 February 1998