Ansett Transport Industries (Operations) Pty Ltd v Wraith

REASONS FOR JUDGMENT HIS HONOUR: The Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act), which came into force on 1 December 1988, provides for the payment, by the applicant, of workers' compensation to employees of the Commonwealth and to employees of certain Commonwealth authorities. For the purposes of the 1988 Act "employee" is defined to include a member of the Defence Force: s 5(2)(b). Compensation is payable when an employee suffers a disease that is contributed to in a material degree by the employee's employment (see the definition of disease in s 4) or when an employee suffers an injury (other than a disease) arising out of or in the course of the employee's employment (see the definition of injury in s 4). In the event that an employee suffers an injury, s 14(1) provides that compensation is payable where that injury results in death, incapacity for work or impairment. "Impairment" is defined in s 4 to mean "the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or functions". The compensation that is payable includes the cost of medical treatment (s 16), the cost of funeral expenses if the injury results in death (s 18) and compensation for loss of wages if the injury results in incapacity (s 19) subject to certain qualifications where the employee is in receipt of other benefits. In addition s 24 provides for the payment of "lump sum" compensation in the case where an injury results in a permanent impairment. "Permanent" is defined in s 4 to mean "likely to continue indefinitely". When there is a permanent impairment resulting from an injury, the employee is required to have his or her degree of permanent impairment determined (and expressed as a percentage) in accordance with the Guide to the Assessment of the Degree of Permanent Impairment approved pursuant to s 28: see s 24(5) and (6). Provided the degree of permanent impairment is not less than 10 per cent, lump sum compensation is payable to a maximum of $80,000: see ss 24(7) and (9). The Guide that has been approved under s 28 is divided into two parts and one part, Part A, is to be used to assess the degree of permanent impairment resulting from an injury. Part A is based on the concept of "whole person impairment" The introduction to the Guide explains that Part A "is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person". Each group is set out in a separate table that contains impairment values at graduations of five per cent or multiples of five per cent. It is necessary to refer to two tables. The first is Table 9.5 which is concerned with "limb function - lower limb". It gives different percentages of impairment by reference to activities that are capable of being and activities that are not capable of being undertaken. For example, there will be a ten per cent level of impairment where a person "can rise to standing position and walk but has difficulty with grades and steps". The other table is Table 9.6 and it is concerned with impairment of the spine. There percentages of impairment depend upon the level of restriction in movement of the spine. The 1988 Actrepealed and replaced the Compensation (Commonwealth Government Employee) Act 1971 (Cth) (the 1971 Act). The 1971 Act had also provided for the payment of workers' compensation to Commonwealth employees but was less generous than the 1988 Act in the sense that certain injuries that are compensable under the 1988 Act were not compensable under the 1971 Act. To ensure that employees who were not entitled to compensation under the 1971 Act could not take advantage of the benefits conferred by the 1988 Act, s 124 of the 1988 Act provides, in substance, that an employee is not entitled to compensation under the 1988 Act in respect of any injury suffered before the commencement of the 1988 Act if that injury was not compensable under the 1971 Act. Consequently, an employee is not entitled to compensation under s 24 in respect of a permanent impairment that occurred before the repeal of the 1971 Act if that employee was not entitled to receive a lump sum payment under the 1971 Act. Victor John Lees, the respondent, is a military policeman and therefore an employee of the Commonwealth. He has been a military policeman since 1977. In September 1986, while playing a game of basketball as part of his regular duties, he injured his lower back. An X-ray taken a little time after the incident disclosed "mild disc bulging at L4-5 with no definite nerve root compromise [but] the possibility of some nerve root compromise of S1". For a period of about twelve months after his injury the respondent suffered pain both in his lower back and legs. In June 1990 the respondent sought medical treatment for pain in his lower back and for pain in his left hip. The medical reports prepared at the time record that the respondent advised his Defence Force medical practitioner (Dr R Andrews) that he had "no trauma recently" and that he knew "no reason why [he] feels stiff and aching". A computerised axial tomography scan (CAT scan) identified "localised left postero-lateral protrusion at L4-5 disc with mass effect on the left L5 nerve root and (m)ild degenerative change L5/S1 disc without focal protrusion." On 12 July 1991 the respondent suffered acute back pain while standing up from a crouching position. This pain persisted and a Defence Force medical practitioner referred the respondent to a specialist orthopaedic surgeon, Mr R Haig. Mr Haig arranged for the respondent to undergo a further CAT scan which showed "moderately large central and left posterio-lateral bulge of the L4/5 disc abutting the left L5 nerve root (and) some compromise of the exit foramen of the left L5 nerve root due to narrowing of the L5/S1 disc space and spurring around its left postero-lateral margin." In view of Mr Lees' ongoing symptoms of back pain and leg pain, on 30 September 1991 Mr Haig performed a discectomy at the L4-5 level . Despite this operation the respondent still continued to suffer from intermittent pain in his lower back and right leg. On 17 June 1994 the Respondent made a claim for compensation under s 24 of the 1988 Act contending that the injury to his back had resulted in a permanent impairment of his lower back. The claim form stated that the date of the injury was "4/6/1990 approx". A delegate of the applicant considered the claim and rejected it for the reason that the permanent impairment suffered by the respondent had occurred in September 1986 and s 124 of the 1988 Act denied to the respondent any entitlement to compensation. That decision was reconsidered and affirmed by another delegate of the applicant the reason being that "it [was] clear that [the symptoms were not] caused by a new injury but [were] a recurrence of the symptoms due to the initial injury first diagnosed in 1986". Pursuant to s 64 of the 1988 Act the respondent applied to the Administrative Appeals Tribunal to review this last mentioned decision. The case the respondent sought to make out before the Tribunal was that he suffered an injury in June 1990 while playing volleyball as part of a unit exercise and this injury had caused a permanent impairment. The respondent said that after jumping to hit the volleyball over the net he felt intense pain when he landed on his feet and this led him to seek medical treatment. Two military policemen, Mr Croft and Mr Thorn, were with the respondent when he injured himself playing volleyball. Mr Croft was called to give evidence and confirmed the incident as it had been described by the respondent. Mr Thorn was not required to attend but a statement that he had prepared that also confirmed the incident was tendered. Mr F Combe, a general surgeon, gave evidence to the effect that the respondent suffered from L4-5 spondylosis as a result of the injury that had occurred during the volleyball ball game and that the injury had resulted in a permanent impairment. Mr Combe assessed that impairment as "a 10 % impairment of the whole of person for loss of less than half normal range of thoraco-lumbar spinal movements" and "twenty per cent impairment of the whole person for difficulty with grades, steps and distances". Mr Haig gave evidence that the respondent had suffered an injury that permanently restricted the use of his lower back and legs but was less clear whether that injury resulted from the volleyball game. Mr Leitl, another orthopaedic surgeon, gave evidence that "ninety per cent of [the] responsibility [for the respondent's disability could be apportioned] to the 1990 [volleyball] incident" and the balance was attributable to the injury suffered during the basketball game in 1986. Mr Leitl also said that the respondent had suffered a permanent impairment. On the other hand there was evidence before the Tribunal from which it could conclude that if the respondent had suffered a permanent impairment, that impairment occurred, as the delegates had found, as a result of the basketball game in 1986. There was also evidence that was consistent with the respondent not having suffered any permanent impairment at all. That evidence was to be found in reports prepared by Defence Force medical practitioners who had examined the respondent in 1993 and 1994 and recorded that the respondent was pain-free, able to drill normally, was running five kilometres every three days and could perform thirty sit-ups and twenty push-ups without difficulty. Finally, there was some evidence that suggested that the respondent had not suffered any injury at all during a volleyball ball game in June 1990. That was to be found in the medical records that had been prepared by medical officers in mid 1990 when the respondent had complained about his symptoms of pain to his lower back and legs. The evidence consisted of the absence of any reference to the volleyball game in those records. After considering the evidence the Tribunal formed the view that there was not sufficient material before it to enable it to arrive at a decision. Accordingly, on 8 March 1996 the Tribunal delivered what might conveniently, if not correctly, be called interim reasons explaining why it could not complete the review. The interim reasons summarised the evidence to date and set out the findings that the Tribunal was able to make based on that evidence. Those findings were that (a) the respondent had suffered a back injury in September 1986 while playing basketball; (b) the injury arose in the course of the respondent's employment with the Commonwealth; (c) the injury caused an impairment in respect of which no lump sum compensation was payable under the 1971 Act; (d) the impairment had not become permanent as at 1 December 1988; and (e) the respondent did not suffer a back injury in June 1990 while playing volleyball. With respect to this last finding the Tribunal said it preferred to rely on the medical records rather than on the evidence of the respondent and his two lay witnesses notwithstanding that the Tribunal found the respondent to be an "honest and forthright person". The Tribunal explained that it had rejected the respondent's evidence concerning the volleyball incident on the basis that he had a poor recollection of events. The Tribunal also dealt with the symptoms of lower back pain that the respondent suffered on 12 July 1991. The Tribunal noted that Dr Andrews had attributed those symptoms to the occasion when the respondent stood from a crouching position. The Tribunal also noted that the respondent had not relied on this event as a cause for his symptoms or as the cause for the operation that was performed about two months later. The Tribunal then said: "It could be that the incident did not arise out of the employment. It may have been an otherwise trivial event which has assumed significance because of the past history of back injury and its proximity to the eventual surgery. It might also be assumed that the surgery was a result of the episode of 12 July 1991 but this is also speculation because there was no evidence during the hearing with respect to this incident." Accordingly, the Tribunal said that it would not be appropriate to decide the review without the respondent being given the opportunity to produce further evidence in relation to this incident which might assist the Tribunal "in a proper review of the decisions made". Further evidence was then given by the respondent. Its purpose was to establish that the incident on 12 July 1991 occurred while the respondent was performing his normal duties as a military policeman. The respondent said that the incident had occurred when he was carrying out those duties. He also said that he had sought medical treatment shortly after the incident because of the pain it had caused him. No other evidence was called. On 30 July 1996 the Tribunal held that the decision under review should be set aside. It found that the respondent had suffered a permanent impairment by reason of the incident on 12 July 1991 being a ten per cent impairment under each of Tables 9.5 and 9.6. The Tribunal provided written reasons for its decision. Those reasons made reference to its interim reasons to such an extent that it should be concluded that the interim reasons were incorporated into the reasons given on 30 July 1996. In its reasons the Tribunal recited that previously "because of what then appeared to be an absence in the evidence sufficient to permit a concluded review of the decision under review" it had called for further evidence. As a consequence of that evidence the Tribunal said that it was "now satisfied and find[s] as a fact that the episode of 12 July 1991 caused back injury which arose out of or in the course of the [respondent's] employment." The Tribunal also said that it was "satisfied on the probabilities that the impairment existing at 1 December 1988 [had] subsequently become permanent by reason of the episode of 12 July 1991." By Notice of Appeal dated 26 August 1996 the applicant appeals from this decision of the Tribunal. The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and is confined to a question of law. There are a number of grounds put forward in support of the appeal. I do not think that it is necessary for me to deal with each of them in great detail. During the course of the hearing only two grounds were the subject of detailed submissions and for the remainder the applicant was content to rely upon the written submissions that had been filed on its behalf. The first ground alleges that there was no evidence before the Tribunal to support its finding that the respondent had suffered an injury that resulted in an impairment to his legs. Generally speaking, a finding of fact is not reviewable by the Court. But it has long been established that an insupportable finding of fact may be set aside. This is because the question whether there is any evidence of a particular fact is a question of law. Further, whether a particular inference can be drawn from facts is also a question of law. In the province of judicial review the making of findings and the drawing of inferences in the absence of evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-356 per Mason CJ. Precisely what must be shown to make out a case of "no evidence" has been the subject of much judicial comment. In a recent decision in the Supreme Court of Victoria, Roads Corporation v Dacakis [1995] 2 VR 508 at 520, Batt J said that a finding of fact will only be open to challenge as an error of law if there was no evidence to support it and that such a finding would not be open to challenge merely because it was not reasonably open on the evidence. Batt J went on to say that an inference will be open to challenge if it was not reasonably open on the facts. There is no doubt that the first proposition is correct. It follows directly from what was said by Mason CJ in Bond as well as many other cases in Australia although the position might be different in England. Most of the important cases are collected in the judgment of Ormiston J in Powley v Crimes Compensation Tribunal (unreported, Court of Appeal, Supreme Court of Victoria, 16 December 1996). It is not clear whether the second proposition accurately states the law and I notice that Batt J himself had some doubt about it. The difficulty comes about from a passage in the judgment of Mason CJ in Bond at 360 where his Honour said that "an inference will be reviewable on the ground that it was not reasonably open". In my view there is a very real possibility that the use of the word "reasonably" in the passage quoted was not intended to make less onerous the task of challenging, as an error of law, the drawing of an inference. Certainly Ormiston J did not think so in Powley: see his reasons at 12-14. Was there any evidence to support the finding that the respondent had suffered an impairment to his legs? Clearly there was. Mr Leitl, the orthopaedic surgeon said so in his report dated 11 July 1995. He assessed that impairment as "10 precent" (sic). The respondent also gave oral evidence, which is recorded in the hand-written notes taken by the member constituting the Tribunal, about his continuing leg pain. (There is no transcript of his evidence.) Thus, the first ground of appeal is not made out. The second ground and the third ground can be taken together. Shortly stated it is alleged that the Tribunal failed to take into account evidence, found in the medical records, that was to the effect that since his operation in 1991 the respondent had regularly been running five kilometre distances, had been undertaking other exercises and had been assessed as "battle fit" for the purposes of his employment. The contention is that if such evidence had been taken into account a finding of permanent impairment would not have been made. It is true that if this evidence had not been taken into account by the Tribunal an error of law would be disclosed. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Lord Greene MR said that if a decision-maker fails to take into account a consideration which he should take into account the decision-maker would err in law: see also the discussion by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1985) 162 CLR 24 at 39-41. However, it is clear from its reasons that the Tribunal did take this evidence into account. In the first place the evidence is referred to in its reasons. In the second place the reasons also record what the respondent said about this evidence. He denied that he was capable of undertaking strenuous activities without pain. The fact that this evidence is summarised in the reasons is hardly consistent with an allegation that the evidence was ignored. The only proper conclusion is that the evidence was taken into account but was not given the significance which the applicant thinks it ought to have been given. The second and third grounds of appeal are not made out. The fourth ground is that the Tribunal failed to determine the nature of the impairment which it found the respondent had suffered before 1 December 1988 with the consequence that it was not possible for the Tribunal to find, as it did, that the impairment had become permanent by about July 1991. There is no merit in this ground. In fact, the Tribunal did describe the nature of the injury that had been suffered by the respondent during the basketball game in September 1986. After stating that there was no evidence to suggest that the respondent had suffered a back injury prior to September 1986 the Tribunal said that the X-rays taken on 26 May 1987 disclosed a slight narrowing at L4-L5 which was said to be consistent with degenerative disc disease. The Tribunal also referred to and described the results of the CAT scan taken in July 1987. This was a sufficient description of the injuries suffered by the respondent to enable the Tribunal to determine whether any impairment existed as at 1 December 1988 and whether that impairment had become permanent after that date. The decision of the Tribunal that the impairment suffered by the respondent in September 1986 had become permanent by reason of the incident on 12 July 1991 was directly based on the medical evidence that was before the Tribunal. I fail to see how there was any error, let alone an error of law, in the manner in which the Tribunal determined this question. The fifth ground is that in considering whether the respondent had suffered a permanent impairment before 1 December 1988 the Tribunal failed to take into account the evidence of Mr Haig that after the injury which was suffered in 1986 the respondent continued to experience back pain and leg pain which the applicant says is consistent with the injury having caused a permanent impairment. There is a short answer to this complaint. In its reasons the Tribunal recorded the fact of the 1986 injury and went on to say that thereafter the respondent "did continue to work and maintain his FE rating and play sport. He did have pain from time to time and did attend doctors, although it was noted that whilst on 18 January 1988 he was diagnosed as having discogenic low back pain, which he described as being a chronic problem, a doctor on the following day said that central L5-S1 pain had largely resolved. A similar notation was made on 21 January 1988." The Tribunal also noted that the respondent did not attend on any doctors between 1988 and July 1990. Thus the degree and severity of the symptoms occasioned by the 1986 injury were at the forefront of the Tribunal's consideration whether a permanent impairment existed before 1 December 1988. There is no basis for concluding that any evidence relevant to this question was ignored. The next ground is that there was no evidence for the finding that the 12 July 1996 incident resulted in the pre-existing impairment becoming permanent and causing a degree of impairment of ten per cent. The point arises in this way. One of the interim conclusions reached by the Tribunal was that, on the evidence that was then before it, the Tribunal was not able to say whether the impairment which it found did exist as at 1 December 1988 had become permanent after that date. The Tribunal arrived at this conclusion notwithstanding the fact that there was evidence from the doctors which would have enabled it to make a finding that the impairment had become permanent after 1 December 1988. But, such a finding, even if it had been made, would not have been of significance unless it was also established that the injury that caused that permanent impairment arose out of the respondent's employment with the Commonwealth. By making the statement that the Tribunal was not able to determine the issue of permanency the Tribunal was inviting the respondent to lead further evidence on this point. The respondent did not take up the invitation. Nevertheless the Tribunal ultimately found that the respondent's impairment had become permanent. The applicant says that such a finding could not have been open on the evidence for the reason that the Tribunal itself had said that it required further evidence before it could make that finding. In dealing with this submission it is important to bear in mind precisely how the Tribunal arrived at its decision that the impairment suffered by the respondent had become permanent. The Tribunal said that it reached this conclusion "on the evidence heard in the previous proceedings and upon review of the medical reports tendered in evidence". I take this to mean that after the Tribunal delivered its interim reasons and heard further evidence from the respondent the Tribunal reconsidered all of the medical reports and reconsidered all the oral evidence and that as a consequence of that reconsideration the Tribunal was in a position to arrive at a conclusion on the issue of permanency. That approach does not admit of the criticism that there was no evidence for the decision. On the contrary, in order to make out a case of "no evidence" it would be necessary for the applicant to show that the evidence which had been reconsidered by the Tribunal did not provide any foundation for its decision. Of course such an argument would be bound to fail because there was evidence that supported the decision. Moreover, I see nothing wrong with the fact that the Tribunal reconsidered the evidence for the purpose of arriving at a decision. It is true that in its interim reasons the Tribunal invited the respondent to lead further medical evidence if he was so advised. But when the respondent did not do so it remained the duty of the Tribunal to consider the whole of the evidence in order to arrive at a decision. It is apparent that what has occurred as a consequence of its review of the evidence is that the Tribunal changed its mind about the effect of that evidence. It was entitled to do so. The Tribunal could alter its view on any issue that it was required to determine until it had finally disposed of the case. Indeed, it seems to me that rather than criticise the Tribunal for the way in which it dealt with this part of the case it should be congratulated. It could easily have found against the respondent at the time it handed down its interim reasons. But instead of doing that the Tribunal acted very fairly in affording the respondent the opportunity to establish his case if he was able to do so. The final ground of appeal is that the Tribunal failed to comply with s 43(2B) of the Administrative Appeals Tribunal Act. Section 43(2) imposes an obligation upon the Tribunal to give either oral or written reasons for its decision. Section 43(2B) provides that where the Tribunal gives reasons in writing, those reasons shall include its finding on material questions of fact and refer to the evidence or other material on which those findings were based. The particular respects in which it is said that the Tribunal failed to set out its findings were in relation to (a) the Tribunal's conclusion that the respondent's impairment was not permanent prior to 1 December 1988, (b) the Tribunal's conclusion that the respondent was entitled to a permanent impairment payment pursuant to Table 9.5 of the Guide, and (c) the Tribunal's conclusion that the respondent was entitled to a permanent impairment payment pursuant to Table 9.6 of the Guide. The imposition of an obligation upon the Tribunal to provide reasons for a decision achieves a number of very important objectives. It ensures that the person whose interests may be adversely affected by a decision is told why the decision has been made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. It enables the public to have confidence that the Tribunal has gone about its task appropriately and fairly: Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88. It allows a party who is dissatisfied with a decision to determine whether there has been some reviewable error made by the Tribunal: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507. It imposes an intellectual discipline on the Tribunal making it more likely that its decisions will not be arbitrary or capricious. Finally, the giving of reasons furthers judicial and quasi-judicial accountability: see Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 279. In determining whether the obligation to give reasons has been discharged a number of principles must be born in mind. First as Shepherd J said in Bisley Investments Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 no standard of perfection is required in their preparation. What is required is that the reasons should be expressed in clear language so that they are capable of being understood: Ansett Transport at 48 ALR 507. The reasons need not deal with every detail of the evidence but must set out those parts of the evidence which are important for the conclusions arrived at: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577. The reasons must disclose the reasoning processes of the Tribunal: Telescourt v Commonwealth (1991) 29 FCR 227. Finally, in determining whether the reasons are adequate they must be considered fairly and not combed through "with a fine appellate toothcomb to find error": Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 291; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 98 ALR 180 at 187. What are the consequences if the obligation to provide adequate reasons has not been satisfied? There are a number of possibilities. One is that the Tribunal can be compelled to provide reasons by the issue of a writ of mandamus or by an order in the nature of mandamus. Another possibility is that a deficiency in the reasons may be such as to lead to the inference that the Tribunal erred in law in arriving at its decision in which case the decision is liable to be set aside. The third possibility is that a failure to give adequate reasons is itself an error of law that enables the decision of the Tribunal to be set aside. This would only be so if, on the proper construction of s 43(2B), it was intended that a failure to comply with that subsection necessarily so vitiated the decision as to require it being set aside for error of law. In Dornan v Riordan (1990) 95 ALR 451 the Full Court held that a failure by the Tribunal to provide adequate reasons for its decision amounted to an error of law permitting the Court to set the decision aside. Dornan has been followed on many occasions and has been confirmed by later decisions of the Full Court: see for example Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84. However, if I was not constrained by authority I would reach a different conclusion. Moreover I regard the issue as being of such importance that I should state why I believe that the Full Court fell into error. A convenient starting point is the obiter opinion of Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422 who said at 445-446: "[A] failure by a Tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the Tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law. An obligation to give oral or written reasons for a decision is cast on the A.A.T. section 43(2) of the A.A.T. Act, but the remedy for the failure to fulfil that obligation adequately is a mandatory order by the court to do so." (citations omitted) In Dornan the Full Court drew attention to this passage but rejected it as not being a correct statement of the law. The Full Court said at 460: "[T]he law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law". In reaching this conclusion the Full Court relied upon a number of authorities which were said to support it. The first case was Re Poyser, supra. That case was concerned with the failure by an arbitrator to provide reasons for an award in compliance with s 12 of the Tribunals and Enquiries Act 1958 (U.K.). Megaw J held that this failure was an error of law on the face of the arbitration award. His Lordship said it was "a material error of form". Accordingly, the award was set aside. But in 1970 Re Poyser was overruled by a divisional court which decided Mountview Court Properties Ltd v Devlin & Ors (1970) 21 P&CR 689. In that case Lord Parker CJ said of Re Poyser (at 695): "For my part, I find it impossible to say that a failure to provide sufficient reasons of itself gives rise to the right of this Court on an appeal to quash the decision of the committee. Secondly, it is to be observed that, quite apart from that, Re Poyser and Mills' Arbitration was really a case where, on the reasons stated, the proper inference was that there had been an error of law and that the arbitrator had misdirected himself. Of course, if the very insufficiency of the reason gives rise to a proper inference that there has been an error of law in arriving at the decision, then clearly it would be a case for quashing the decision." Cooke J agreed with Lord Parker. Bridge J also agreed and had this to add (at 695-96): "(A) failure to give reasons pursuant to the duty imposed by section 12 of the Tribunals and Enquiries Act 1958 is not per se a ground on which the Court could properly allow an appeal under section 9, the right of appeal being conferred upon a person who is dissatisfied in point of law with a decision. ... Mr Slynn concedes that there may in theory be cases where from a failure to give reasons one may legitimately infer, on a balance of probabilities, that the Tribunal's process of legal reasoning must have been defective." It is to be observed that the reasoning of both Lord Parker and Bridge J correspond with the views of Brennan J in O'Brien. To a similar effect is the decision of Ormiston J in Body Corporate Strata Plan No 4166 & Ors v Stirling Properties Ltd (No 2) [1984] VR 903. There it was alleged that a planning appeals board had failed to give sufficient reasons for its determination to refuse two applications for permits to use certain land for the erection of residential units. The board was required to furnish a statement of its reasons if requested to do so: s 22(2) of the Town and Country Planning Act 1961 (Vic). Ormiston J, after reviewing a number of authorities, said that except in the case of a statutory arbitration such as was considered in Re Poyser the appropriate remedy for a failure to give adequate reasons was mandamus. He pointed out that Gowans J had expressed a similar view in Wattle Glen Estates Pty Ltd v MMBW (1974) 40 LGRA 104 at 108. The Full Court also relied upon Collins v Repatriation Commission (1980) 32 ALR 581 at 594-5 and O'Brien v Repatriation Commission (1984) 1 FCR 472 at 504 as supporting its statement of the law. In Collins, Fisher J was required to consider the consequence of the failure by the Tribunal to give proper reasons for its decision on a review of a decision made by the Repatriation Board. Fisher J held that the failure by the Tribunal to state relevant facts in its reasons entitled the court to assume that the Tribunal had failed to give consideration to a material matter which arose for its consideration. For that reason the decision of the Tribunal was set aside. In my view this decision is consistent with the views of Brennan J and not those of Megaw J. O'Brien is a case that was concerned with a claim for a pension under the Repatriation Act 1920 (Cth). There the Full Court did hold that a failure by the Tribunal to observe s 43(2) of the Administrative Appeals Tribunal Act was an error of law "at least when a claim to a pension is rejected". Few of the relevant cases were referred to and two of them, as the Full Court conceded, did not support its conclusion: see 1 FCR at 486. Finally, the Full Court in Dornan relied upon a line of cases of which Pettitt v Dunkley (1971) 1 NSWLR 376, Apps v Pilet (1987) 11 NSWLR 350 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 are examples. They concern the common law obligation of a judge to give reasons for his or her decision. Reference might also be made to Mifsud v Campbell (1991) 21 NSWLR 725, Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639. All of these cases establish the proposition that a breach of the obligation will result in an appellable error of law. A concise statement of the principle can be taken from the judgment of Asprey JA in Pettitt where his Honour said (at 382): "In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved then, in the absence of some strong compelling reason, the case is such that a judge's finding of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law." There are two reasons why these authorities are of limited assistance in determining whether the breach of a statutory obligation to give reasons amounts to an error of law. The first is that unless the failure to give adequate reasons is an appellable error of law no other remedy would be available to a person who is adversely affected by the order of the court. A writ of mandamus can not issue against a superior court of record of a State. The second and more important reason is that these cases are not concerned with the construction of a statute that imposes an obligation to give reasons. In my view both as a matter of principle and having regard to the authorities to which I have drawn attention the judgment of Brennan J in O'Brien correctly states the consequences of the failure by the Tribunal to provide reasons for its decisions. But as the Full Court has reached a different conclusion I am bound to follow it: contrast the approach of Lord Denning MR in Broome v Cassell & Co Ltd [1971] 2 QB 354 and in Miliangos v George Frank (Textiles) Ltd [1975] QB 487. Now I will return to the applicant's submission that the Tribunal failed to provide adequate reasons for its decision. First it is said that the Tribunal merely asserted that the respondent had not suffered a permanent impairment before 1 December 1988 without setting out the findings necessary to support that conclusion. The allegation is not correct. In that part of its reasons which appear under the heading "Reasons" there are a number of findings and references to the evidence which bear upon the conclusion reached by the Tribunal that the respondent had not suffered a permanent impairment before 1 December 1988. They include the following. The Tribunal found that the respondent had suffered an injury to his back whilst playing basketball in 1986. The nature of the injury was described. Then the Tribunal said there was no evidence of any other injury being suffered between September 1986 and July 1987 although the Tribunal noted that there was evidence that the respondent suffered some pain in early January 1988. The Tribunal then referred to the fact that apart from the attendance upon doctors in January 1988, when it was recorded that the respondent was no longer suffering pain, there were few attendances after 1988 until July 1990. The Tribunal also referred to the evidence that the respondent was working over this period, had been maintaining his fitness rating and was able to play sport. These were the facts that led to the conclusion that the respondent had not suffered a permanent impairment as at 1 December 1988. It was no mere assertion by the Tribunal. The process of reasoning of the Tribunal is evident. It is convenient if I treat as one the final two complaints made namely that the Tribunal failed to set out its findings on material questions of fact or refer to the evidence on which those findings were based in relation to its conclusion that the respondent was entitled to permanent impairment compensation payable under each of Tables 9.5 and 9.6. The conclusion of the Tribunal on the compensation that was payable is found in one sentence in its reasons. It reads: "Upon the majority of the medical evidence filed with the Tribunal (doctors Leitl, Combe, and Andrews) and upon the evidence previously given by the applicant with respect to his present level of symptoms I am satisfied that the applicant suffers a 10% impairment under each of Tables 9.5 and 9.6 of the Guide". Here the applicant is on much stronger ground in its criticism of the reasons. The reasoning of the Tribunal is certainly brief. But is its reasoning process adequately disclosed? In the end the answer can be no more than an exercise of judgment in a matter where there is obvious room for disagreement. The approach that is proper to adopt is that mentioned by Jenkinson J in Commonwealth v Borg (1994) 20 AAR 299 at 308-9 where his Honour said: "The written reasons of the tribunal for its decision afford a narrative account of the relevant events and of the substance of some of the medical opinion evidence before the tribunal. The narrative is so expressed as to expose the conflicting expert opinions on the question which the tribunal considered critical to the determination of the review. The reasons do not explicitly state those questions as those which the Tribunal considered to be critical, but the expression of the tribunal's conclusions, considered in the light of the preceding narrative, enable the questions to be identified with confidence. The only criticism which might be made of the document is that it does not explicitly indicate reasons for preferring one expert witness to another. But those reasons can be inferred from the whole content of the document. In my opinion this ground fails." The evidence of the three doctors is summarised extensively in the interim reasons which, as I have said earlier, are to be treated as incorporated into the reasons given on 30 July 1996. That evidence is to the effect that the respondent suffered a permanent impairment. Mr Combe's evidence, as recorded in the interim reasons, was that the respondent had suffered a 10 per cent impairment pursuant to Table 9.6 and a 20 per cent impairment pursuant to Table 9.5. The evidence of Mr Haig was to the effect that the respondent would in all likelihood continue to suffer both back pain and leg pain but he did not proffer any view on the appropriate percentages of impairment under the tables. The summary of the evidence of Mr Leitl referred to his view that the respondent would continue to suffer pain notwithstanding the operation that had been performed by Mr Haig. Finally the respondent's evidence about how he was affected by his injury was set out. In stating that the Tribunal based its conclusion on the degree of permanent impairment on the evidence of the three doctors and the respondent, the Tribunal was saying that it accepted that evidence in preference to the other evidence, also summarised in its reasons, that was to a different effect. Although no reason is given why that evidence was to be preferred the reason is obvious when regard is had to the totality of the reasons. The respondent had been accepted as an honest witness. The only evidence that contradicted the evidence of the three doctors was that contained in the medical records maintained by Defence Force medical practitioners which was to the effect that the respondent was not affected by any injury. However the respondent said that this was not the case and his evidence was obviously accepted by the Tribunal. It is true that the Tribunal did not explain how it arrived at the level of impairment as being 10 per cent. But here again there is no difficulty in inferring the reason. Mr Combe provided the foundation for the finding although his evidence was discounted in relation to his assessment that the respondent had suffered 20 per cent impairment under Table 9.5. It can reasonably be inferred that the description by the respondent of the physical activities he could undertake led to the reduction. Little more needed to have been said if the Tribunal had expressly articulated those reasons which I have inferred led it to arrive at its conclusion. It was after all a matter of judgment for the Tribunal to determine the percentage of impairment and it had medical evidence to support its ultimate finding. Accordingly, I do not accept that the Tribunal failed to provide adequate reasons for its decision. The appeal will be dismissed with costs. I have not so far mentioned that the respondent has filed a document entitled Notice of Cross-Appeal. In that notice the respondent does not seek to have the decision of the Tribunal varied or set aside. What is alleged in the notice is that the Tribunal reached the correct decision but should have done for reasons which the Tribunal did not find acceptable. The notice is much like a notice of contention under O 52 r 22(3). Having disposed of the appeal in the respondent's favour it is not necessary to deal with the matters raised by the notice. It will simply be dismissed as well. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein Associate: Dated: 10 December 1997 Counsel for the applicant: M McInnis Solicitor for the applicant: Australian Government Solicitor Counsel for the respondent: I Fehring Solicitor for the respondent: Nevin Lenne & Gross Date of Hearing: 27 August 1997 Date of Judgment: 10 December 1997