Vulic, Radunka v Capital Territory Health Commission

[1982] FCA 30

Re: RADUNKA VULIC
And: THE CAPITAL TERRITORY HEALTH COMMISSION
No. ACT G 20 of 1981
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Workers' Compensation - appeal from Tribunal on question of law - finding by Tribunal that appellant's incapacity unrelated to employment - onus of proof - whether conclusion was one to which the Tribunal was entitled to come - whether question of law involved.

Compensation (Commonwealth Government Employees) Act 1971 (Clth.) ss.27, 95.

HEARING

SYDNEY

#DATE 26:3:1982

ORDER

1. The decision of the Commonwealth Employees' Compensation Tribunal be affirmed.

2. The appellant is to pay the respondent's costs of the appeal.

JUDGE1

This is an appeal pursuant to s.95 of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") from a decision of the Commonwealth Employees Compensation Tribunal ("the Tribunal") in proceedings brought by the appellant against her former employer the Capital Territory Health Commission. Section 95 permits an appeal on a question of law only. Since the Tribunal gave its decision the Act has been substantially amended by the Commonwealth Functions (Statutes Review) Act 1981, but the appeal to this court is preserved by s. 155 of the last mentioned Act.

The appellant's claim for compensation arose out of an incident which she alleged occurred on 23 November 1973 whilst she was employed as a cleaner at Canberra Hospital. Her claim was, in effect, that whilst carrying out her duties she aggravated a chronic lumbar disc disease and that the effects of this aggravation subsisted until 1976 when she suffered further pain in her spine. She claimed that she had to cease work in 1976 because of the lumbar pain that she was then experiencing. She did not allege the occurrence of a separate incident in 1976 that gave rise to her back trouble. Rather, the claim was that the condition in 1976 was attributable to the 1973 incident.

The appellant's claim has had a somewhat chequered career which it is unnecessary to relate, in full, in these reasons. It is sufficient to say that the Delegate of the Commissioner for Employees' Compensation determined in June 1980 that the appellant had suffered an aggravation of a condition of chronic lumbar disc disease to which her employment was a contributing factor and that the aggravation of the disease was deemed to be a personal injury arising out of or in the course of her employment - see s.29(2) of the Act. The Delegate further determined that the respondent was liable to pay compensation to the appellant in respect of that injury. However, he also determined that the effects of the injury ceased to exist not later than April 1980 and that thereupon the appellant ceased to be entitled to compensation. Both the appellant and the respondent requested the Tribunal to reconsider the Delegate's determination, as was their right under s.63(1) of the Act. At the hearing before the Tribunal the respondent claimed that the appellant had not aggravated her back condition at all in 1973, but this issue was found in the appellant's favour. The Tribunal made findings of fact as follows:

"(a) the claimant aggravated a diseased back in or about November 1973;

(b) the claimant then had two days sick leave and two days rostered off work;

(c) she then returned to work and continued to work with no reduction in efficiency until she had a stroke in June 1975;

(d) the claimant was then on sick leave for two or three months;

(e) she then worked again; her efficiency was reduced as a result of the stroke until October 1976 when she was retired;

(f) the claimant is now totally incapacitated for work because of her back, cardiac and psychiatric problems, none of which result from or were contributed to by an aggravation at work in November 1973."

In accordance with these findings, the Tribunal found that the respondent was not liable to pay compensation to the appellant. The appellant had, in fact, received sick pay and ordinary pay in respect of the four days during which she was incapacitated in 1973.

Upon the hearing of the appeal to this court it was argued on behalf of the appellant that the Tribunal's decision was wrong in law. The grounds taken in the notice of appeal were broadly stated and some of them plainly did not raise questions of law. During the argument it appeared that, apart from some additional grounds to which I shall later refer, the appellant's attack on the Tribunal's decision was based upon two propositions. First, that upon the evidence before it the only conclusion to which the Tribunal could properly have come was that the appellant was entitled to compensation. Secondly, that unless the evidence positively excluded the possibility (as it did not) that the 1973 incident did not have any operative effect in 1976, the Tribunal should have found in favour of the appellant

Notwithstanding the earnest submissions made by Mr Romano in support of these propositions, I do not think either is sustainable. As to the first proposition, there was clearly abundant evidence before the Tribunal upon which it based the critical finding that the 1973 incident which aggravated the appellant's back condition did not result in or contribute to her incapacity in 1976 and subsequently. Between the end of 1973 and 1976 the appellant made no complaint about her back. Dr. Andrews, whose evidence the Tribunal accepted in preference to that of other doctors because he was the treating specialist and had examined the plaintiff more frequently than had the others, was of the opinion that the 1973 incident gave rise only to a temporary aggravation of a pre-existing condition. He said that the aggravation was temporary and that after a short time Mrs. Vulic's back "settled down" and "went back to its pre-existing state". In his opinion the disability from which she suffered in 1976 was not related to the 1973 incident. He also expressed the opinion that the back disease would not have been accelerated by the 1973 incident. A different view was expressed by Dr Chandran. He thought that when he saw her in 1980 Mrs Vulic had reached a stage of chronic invalidism "part of which is due to an injury aggravating a pre-existing degenerative condition in the back . . . . ".

The Tribunal had this to say on the medical evidence:

"As to the effects of any aggravation of the disease caused by an incident at work shortly before she was seen in Casualty on 23rd November I accept the evidence of Dr. Andrews in preference to that of Dr. Chandran. This is because of the number of occasions Dr. Andrews has seen the claimant, the span of the period over which he has done so, the fact that he was the treating specialist and my assessment of the two specialists giving evidence. On this evidence the effects of the aggravation to the diseased back ceased when the claimant returned to work four days after the incident."

This was a view of the medical evidence that was plainly open to the Tribunal. A third doctor, a psychiatrist, was called, but his evidence was of questionable value to the appellant. The Tribunal said in its decision, correctly in my view, that if the condition of the back which the psychiatrist observed in 1981 was not related to the aggravation in 1973 (as Dr Andrews thought) then his evidence did not support the claim for compensation.

In the light of this evidence, the appellant's first proposition must fail. It is not for me to say on this appeal whether the finding of the Tribunal was correct or not. I am far from saying that it was incorrect. Clearly there was a proper foundation for the finding, and that is sufficient to dispose of the appellant's first proposition. See the decision of Deane J. in Commonwealth of Australia v. Lyon (1979) 24 A.L.R. 300 where his Honour considered the nature of an appeal under s.95 of the Act. See also Davidson v. Mould (1943) 44 S.R. (N.S.W.) 113 at 115 and, on appeal, (1944) 69 C.L.R. 96. As to the proper approach for this court to adopt in appeals of this nature see the observations of Fisher J. in Blackwood Hodge (Australia) Pty. Ltd. v. Collector of Customs (No. 2) 3 A.L.D. 38 at 49. His Honour's remarks were made in respect of an appeal under s.44 of the Administrative Appeals Tribunal Act 1975, but are equally applicable to an appeal under s.95 of the Compensation (Commonwealth Government Employees) Act 1971. His Honour said:

"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, supra, 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'."

I respectfully agree with His Honour's observations.

The second proposition advanced by the appellant suffers from the initial defect that it mis-states the onus of proof that applied in the proceedings before the Tribunal. Before the Tribunal the appellant was asserting her right to compensation. In these circumstances she carried the onus of proving the facts upon which her entitlement to compensation lay: Phillips v. Commonwealth of Australia (1964) 110 C.L.R. 347 at 350. In my opinion, what the High Court there said in relation to the nature of an appeal under s.20(1) of the Commonwealth Employees' Compensation Act 1930-1959 is equally applicable to a reconsideration by the Tribunal under s.63(1) of the present Act of a determination made by the Commissioner. At p.350 in Phillips' Case the Court said:

"The appeal to the County Court was brought pursuant to s.20(1) of the Act which provides that: 'Any person affected by any determination or action of the Commissioner under this Act may appeal to a County Court against the determination or action and the Court shall have jurisdiction to hear and determine the appeal, and such appeal may be in the nature of a re-hearing'. The use of the word 'may' in the concluding words of the sub-section is somewhat curious but it is clear enough that the form of proceeding for which the sub-section provides is not an appeal in the strict sense at all. What the section does is to provide for the judicial review of administrative decisions of a particular character and upon any such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it. That being so the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delegate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court. Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwealth. Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances."

See also, J & H Timbers Pty Limited v. Nelson (1971) 126 C.L.R. 625.

Mr Romano submitted that as the Delegate of the Commissioner had made a determination that the appellant was entitled to compensation until April 1980 and as the Tribunal had made the further finding that the appellant suffered an aggravation of her back condition in 1973, the onus thereupon shifted to the respondent to prove that the effects of the aggravation ceased to have any effect in 1976 and subsequently. But neither the Delegate's determination nor the Tribunal's finding in respect of the 1973 incident were the equivalent of "an antecedently existing determination" of the kind referred to in the above passage from Phillips' Case. There had not been a final determination of the appellant's right to compensation. The Delegate's determination was the subject of "reconsideration" by the Tribunal under s.63(1) of the Act which is in the following terms: "63. (1) Subject to this Part, where a determination is made under this Act, a party to the determination may either -

(a) request the Commissioner in accordance with Division 3 to refer all or any of the matters or questions to which the determination relates to a Compensation Tribunal for reconsideration; or

(b) apply to a prescribed Court in accordance with Division 4 for a Judicial review of the determination."

Under s.84 the Delegate's determination was liable to be varied or set aside upon reconsideration by the Tribunal. Until the Tribunal gave its decision it could not be said that there was a determination that the appellant was entitled to compensation. In the proceedings before the Tribunal the respondent was not seeking to terminate the appellant's right to compensation under an existing determination in her favour. It was the appellant who carried the onus of proving the necessary facts to entitle her to an award of compensation. Mr Romano contended that Commonwealth v. Muratore (1978) 141 C.L.R. 296 supported his argument that the Commonwealth carried the onus of proof in the present proceedings. But I do not think that case assists him. That was a case where a determination had been made in April 1971 that Muratore was entitled to compensation at a certain rate per week. An appeal against that determination was dismissed. In August 1972 a determination was made by the Delegate of the Commissioner that Muratore was able to earn in suitable employment a weekly amount not less than his average weekly earnings before the injury which he had suffered, and that he was therefore not entitled to compensation as from June 1971. Application for a judicial review of this determination was made by Muratore under s.63(1)(b) of the Act. It was held that upon the hearing of this application the onus of proof of matters which would entitle the Commonwealth to have Muratore's entitlement reduced from the pre-determined rate to nothing lay upon the Commonwealth. The facts in that case were thus quite different from those in the present case, where the appellant is unable to point to any prior determination in her favour, other than the determination which was the very subject of the reconsideration by the Tribunal itself. In Muratore's Case Murphy J. said at p.303:

"Where a variation of a previous determination (by the Commissioner, or on appeal) is made by the Commissioner and judicial review is sought, the onus is on the Commonwealth to prove the facts and circumstances which justify the variation. It is a simple application of the principle that he who asserts must prove."

I have no doubt that this statement is equally applicable to a reconsideration by the Tribunal under s.63(1). But the dictum does not take the appellant's case any further. It was the appellant who was asserting her right to compensation and in the absence of a previous determination in her favour the onus was on her to prove facts entitling her to an award.

There is a second reason why the second proposition advanced by the appellant has no validity. The proposition, in the form in which it was initially propounded, proceeded on the basis that not only did the respondent carry the onus of proof before the Tribunal, but also that such onus was not discharged because the evidence did not positively exclude the possibility that the 1973 incident had an operative effect in 1976 and following years. However, Mr Romano later conceded that, assuming the respondent carried the onus of proof, the onus would be discharged if it were proved to the satisfaction of the Tribunal that more probably than not the 1973 incident did not have any operative effect at the relevant time. The finding of the Tribunal makes it quite clear that it was satisfied on the probabilities that this was the case. With respect to the findings which I have set out above the Tribunal said:

"These findings are based upon the evidence of the witnesses that I have accepted and, in particular, on that evidence of Dr Andrews and Mrs Mehakovic, and not upon the application of rules as to onus of proof which would apply in a court."

This is a clear statement by the Tribunal that it based its findings upon evidence that it accepted. This is tantamount to a finding that, even if the respondent carried the onus of proof, the onus had been discharged to the Tribunal's satisfaction.

The reasons which I have so far given are sufficient to dispose of the matters relied upon by the appellant's counsel in support of the appeal. However he sought to amend the notice of appeal by adding additional grounds. The purpose of the amendment was to permit him to argue a case that the appellant suffered from a disease or sustained an injury in 1976 to which her employment was a contributing factor, and that as a result she had become totally incapacitated. It was also sought to argue an alternative case that the appellant had suffered an aggravation in 1976 of her pre-existing back condition, resulting in her becoming totally incapacitated. It was foreshadowed that in support of the amended claims reliance would be placed upon Commonwealth v. Beattie (1981) 35 A.L.R. 369. It is clear that no such cases had ever been made before the Tribunal. When the claim was initially made to the Tribunal no reference was made to a 1976 injury or incident. Indeed, the notice of appeal in the present case appeals against "so much of the . . . decision . . . as relates to the findings . . . that the appellant (sic) present incapacity is not related to nor aggravated by the Appellant's accident out of and in the course of her employment with the respondent on November, 1973." I accordingly refused to permit the amendments. As I have already pointed out, the court's function on an appeal brought pursuant to s.95 of the Act is to determine questions of law. If the appellant wishes to make a different case, basing her claim not upon the 1973 incident but upon events which occurred in 1976, she must pursue that claim elsewhere. It would not be right for me to entertain that claim nor to express any opinion upon it.

For the above reasons I affirm the decision of the Commonwealth Employees' Compensation Tribunal. I order the appellant to pay the respondent's costs of the appeal.