Williams v Muller

Case [2003] FCA 1190

FEDERAL COURT OF AUSTRALIA

Williams v Muller [2003] FCA 1190

VETERAN’S AFFAIRS – Agreement to abide by medical specialist report on medical causation question – whether agreement was varied – whether terms not complied with – whether terms should be implied into agreement – whether report responded to the agreement as intended by the parties – declaration that parties bound by the report in respect of medical opinion on causative factors – remitted to Administrative Appeals Tribunal to determine whether living in single men’s quarters and consequential change of life constitutes part of employment of applicant.

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 6, 6A, 14, 19-28, 54, 62, 64
Administrative Appeals Tribunal Act 1975 (Cth) s 37

Behan v Australian Telecommunications Corporation (1990) 26 FCR 337 cited
Australian National Railways Commission v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1992) 35 FCR 344 cited
Hardin v Comcare Australia (1995) 21 AAR 392 cited
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 applied
The Corporation of the City of Adelaide v Jennings Industries Limited (1985) 156 CLR 274 cited
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 cited
Secured Income Real Estate (Australia) Ltd v St. Martin’s Investments Pty Ltd (1979) 144 CLR 596 cited
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 cited
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 cited
Wiegand v Comcare Australia [2002] FCA 1464; (2002) 72 ALD 795 cited
Mason v Social Welfare Department [1974] VR 506 cited
Roncevich v Repatriation Commission [2003] FCAFC 146 cited

GARY WILLIAMS v DONALD MULLER AND COMCARE

D 3 of 2003

MANSFIELD J
DARWIN
31 OCTOBER 2003


IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

D3 OF 2003

BETWEEN:

GARY WILLIAMS
APPLICANT

AND:

DONALD MULLER (IN HIS CAPACITY AS A MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL)
FIRST RESPONDENT

COMCARE
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

31 OCTOBER 2003

WHERE MADE:

DARWIN

THE COURT DECLARES THAT:

1.Gary Williams and Comcare are bound by their agreement made on 17 May 2002 to accept as a fact that the Type 1 diabetes mellitus now suffered by Mr Williams was contributed to in a material way by him developing viral infections and vulnerability to viral infections during the period of his service in the Royal Australian Air Force, and that matters concerning his living circumstances during his period of enlistment from about 1980 and the changed lifestyle which developed during that period contributed in a material way to the diabetes now suffered by Mr Williams.

THE COURT ORDERS THAT:

2.The matter be referred to the Administrative Appeals Tribunal to determine in such manner as it may determine whether, in the light of the opinion of Professor Cohen of 28 August 2002, the onset of repeated viral infections and hence diabetes which was contributed to by Mr Williams’ living circumstances from about 1980 and the changed…

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Williams v Muller [2003] FCA 1190
Case
[2003] FCA 1190
Decision Date

CaseChat Overview and Summary

In the case of Williams v Muller, the dispute involved the enforceability of a compromise agreement between Comcare and Mr Williams regarding compensation for Mr Williams' diabetes, which he claimed was contributed to by his service in the Defence Force. The Federal Court was tasked with determining the enforceability of the compromise agreement, particularly whether Comcare could be legally bound to pay compensation if the agreement's terms were not aligned with the Safety, Rehabilitation and Compensation Act (SRC Act). The court had to consider whether Comcare's liability to pay compensation was restricted to situations where the employee's condition was materially contributed to by their employment, as defined under the SRC Act.

The court examined the agreement between Comcare and Mr Williams, which included the appointment of an independent medical specialist to assess whether Mr Williams' diabetes was caused by his employment. The court found that while the parties agreed to be bound by the specialist's opinion, the agreement lacked clarity on several critical aspects. These included the specific information to be provided to the specialist, the exact questions to be addressed, and how the specialist's opinion would influence any decision by the Administrative Appeals Tribunal (AAT) or Comcare. The court also had to determine whether the factors identified by the specialist as contributing to Mr Williams' diabetes were legally considered part of his employment under the SRC Act.

The court concluded that the compromise agreement was not sufficiently clear to be enforceable. The agreement did not adequately address the procedural and substantive legal issues necessary for it to be valid. Consequently, the court decided to refer the matter back to the AAT to determine whether the factors identified by the specialist were part of Mr Williams' employment under the SRC Act. This referral aimed to clarify the enforceability of the compromise agreement in light of the specialist's opinion.

Orders

Orders of the court

2. The matter be referred to the Administrative Appeals Tribunal to determine in such manner as it may determine whether, in the light of the opinion of Professor Cohen of 28 August 2002, the onset of repeated viral infections and hence diabetes which was contributed to by Mr Williams’ living circumstances from about 1980 and the changed lifestyle which developed during that period were features of or were part of or a consequence of his employment with the Royal Australian Air Force.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Finally it is contended that, in the event that an agreement were made between Comcare and Mr Williams for the compromise of his claim for compensation in the terms asserted by or on behalf of Mr Williams, it is not legally enforceable because Comcare can only be liable to pay compensation to Mr Williams in respect of his diabetes if his diabetes was contributed to in a material degree by the performance of his duties as a member of the Defence Force. Comcare, it is argued, has no legal capacity to pay any money to Mr Williams except where that money is required to discharge a liability incurred by Comcare under the SRC Act. If the opinion of Professor Cohen exposes Comcare to the contractual obligation to pay compensation to Mr Williams, where that exposure is not in accordance with the SRC Act, then Comcare cannot lawfully accept his claim. Reliance was placed upon the decisions in Behan v Australian Telecommunications Corporation (1990) 26 FCR 337; Australian National Railways Commission v Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1992) 35 FCR 344; and Hardin v Comcare Australia (1995) 21 AAR 392.THE EVIDENCE AND FINDINGS OF FACT It is clear that on 17 May 2002 Comcare and Mr Williams agreed upon the engagement of an independent medical specialist to address the question required to be addressed by the SRC Act as to whether his diabetes was, in the relevant sense, caused by his employment. It is also clear that the parties agreed to be bound by the opinion of that independent medical specialist. Subsequently, the selection of the independent medical specialist was determined as Professor Cohen. It is further clear on the evidence that the intention of that agreement was to adopt a process for determining the ‘causation’ issue without having the case heard by the Tribunal. The context in which the agreement came to be made (see Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 per Mason J as he then was, at 352) was that there were conflicting medical opinions on whether Mr Williams’ employment had contributed in a material way to the onset of his diabetes. In its review decision made on 27 May 2001 (as contained in the s 37 statement) Comcare noted the conflicting medical reports provided to Comcare and to Mr Williams regarding the relationship of his employment to his diabetes. The report indicates that Comcare was satisfied that there was no causal connection between the diabetes and the service employment. It regarded the medical opinion in favour of that connection as being no more than mere conjecture. Consequently the determination of 20 September 1999 was affirmed and the claim for compensation under the SRC Act refused. Hence, the causation issue was then the stumbling block, or the reason, for Comcare not accepting the claim. The evidence about what happened at the teleconference meeting on 17 May 2002 is sparse. The lawyer attending the meeting on behalf of Mr Williams contemplated that the agreement would be reflected by appropriate binding orders of the Tribunal, but it is unclear whether that is simply an understanding, or was the result of a particular discussion. His evidence of what was said at the conference is very limited. The lawyer attending the conference on behalf of Comcare provides a more detailed description of what transpired during that meeting. I accept his evidence. It is not a verbatim record of the conference, but based upon notes of a series of steps in the discussion. The course of discussion involved identifying the condition of Mr Williams, then the Tribunal member suggesting that the condition of diabetes may be the result of a combination of genetic predisposition together with a triggering factor, and some review of the parties’ respective medical specialists’ opinions. It was in the light of the discussion to that point that the possibility of an independent medical specialist being appointed to prepare a report on the causation issue arose, and there was discussion as to how that medical specialist should be selected. There was also discussion, but without agreement on the topic, as to whether the independent specialist when selected should examine Mr Williams.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Professor Cohen then turned to the final three questions posed by Comcare listed at [38]. He did not return to question 16 except to the extent it was addressed at the end of his answer to question 17. His answers were as follows:‘17.The causal connection between the development of the type 1 diabetes and his military service depends on the bouts of frequent viral infections from which he suffered from 1982 onwards over some seven years. There is nothing to suggest that he was so predisposed prior to enlistment although the need for submucosal resection in 1979 and the radiological evidence for a vestigial frontal sinus has been noted. The causal connection between the viral infections, the diabetes and the nature of his employment probably related to his living circumstances during the early period of his enlistment and the changed lifestyle which developed during this time. The obverse of this observation “would these circumstances have unfolded had he not been in the service?” are theoretical and cannot be answered. 18.In the light of the above I consider it more likely than not that his diabetes developed in consequence of his employment. In other words, I consider this to be a reasonable hypothesis.19.The emergence of his diabetes was preceded by at least eight months of weight gain, hypertension, abnormal lipids and a significantly elevated blood glucose. This was at a time when he had “let himself go” in circumstances which are described in his affidavit as being part of the service life and mores to which he was committed by peer pressure. In this sense I consider that the development of his diabetes and its subsequent course were b) more than minimal.’CONSIDERATION The agreement made on 17 May 2002 seems to have been not fully thought out. The primary issue as to the relationship of Mr Williams’ diabetes to his employment was agreed to be resolved in a certain way, but there was no express agreement as to the material upon which Professor Cohen should be asked to express his views, or precisely the questions which he should be asked to address. There was also no express agreement as to how Professor Cohen’s report would lead to resolution of the AAT proceedings, that is whether it would result in some form of consent determination to be made by the AAT or whether it would result in Comcare reconsidering its earlier decision and making a decision in accordance with the opinion of Professor Cohen, or that something else would occur. Finally, it does not appear to have been considered what, if any, instruction Professor Cohen should have had as to the form of the applicable law. One issue which has now emerged is whether that which Professor Cohen identified (if he did) as contributing to the onset of diabetes was in fact, in terms of s 4(1) of the SRC Act, ‘employment’ of Mr Williams so that his ailment was contributed to in a material degree by his employment. One would have expected such issues to have been expressly addressed. It may be that the latter issue was not expressly addressed because, to that point, Comcare had assumed that the exposure to environmental factors (Mr Williams’ living in single men’s quarters and his personal living habits as a result) were matters which related to his employment. That no longer seems to be the case. There are therefore two significant issues which underlay the agreement made on 17 May 2002. The first relates to procedural matters. The second to a substantive legal question. They are:(1) with respect to the opinion to be sought:(a)what information was to be provided upon which the questions were to be addressed;(b)precisely how the questions to be addressed were to be presented;(c)in the light of the opinion, how was it to be reflected in any determination by the Tribunal or otherwise; and(2)if it arose in the light of the opinion, whether all or any ‘employment’ factors which Professor Cohen identified as materially contributing to his diabetes as a matter of law were matters which constituted part of his employment.