CONSIDERATION
35 The matters raised by asserted errors 2.3 and 2.5 were said to flow from the way the Tribunal addressed what it called Issue 1. In substance, it was argued that because Comcare had accepted liability for medical and like expenses in the past incurred in respect of symptoms other than those from the musculo-ligamentous neck strain, it had redefined the injury which it had accepted as compensable, and (by inference) it could no longer dispute liability to pay compensation in respect of those conditions.
36 Before addressing that contention, I note that the submissions of the appellant did not suggest that the claimed entitlement of the appellant to compensation the subject of this appeal depended on whether the provisions of the 1971 Act or the 1988 Act were applied. The transitional provisions in the 1988 Act provide that, in respect of injuries sustained before its commencement, compensation is payable under the 1988 Act as if it were payable under the 1971 Act: see in particular s 124 of the 1988 Act.
37 Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 concerned an issue similar to that now raised by the appellant. The employer had accepted liability to pay compensation to its employee in respect of the disease Ross River fever, and duly paid compensation. Then it found out that the employee was not suffering from Ross River fever, but a different disease which was not work-related. It decided it was not liable to pay any further compensation. That decision was affirmed on review by the Tribunal. On appeal, it was argued that the Tribunal could not affirm the decision because it did not formally have before it the initial decision to accept the claim, and so it could not go behind that initial decision by making a finding inconsistent with it. That point was successful at first instance: Hannaford v Telstra Corporation Ltd (2005) 41 AAR 156, but that decision was reversed on appeal. Heerey J (with whom Dowsett J agreed) said at [8] that the 1988 Act does not mean that a decision to accept a claim "permanently enshrines" every finding of fact on which a determination is made. His Honour pointed out that Part VI of the 1988 Act specifically empowers the respondent to reconsider its earlier decisions, at any time, including any earlier finding of fact, and that the "modern, practical statutory scheme for the compensation of injured workers" allowed the Tribunal to revisit the finding whether the employee had suffered from Ross River fever as originally diagnosed. Conti J (with whom both Heerey and Dowsett JJ generally agreed) after reviewing the statutory scheme in detail and earlier authorities on the issue, said at [57]:
In my opinion, it should be concluded, upon the correct construction of the SRC Act [the 1988 Act], and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) "[s]ubject to this Part" are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
38 Explicitly, his Honour concluded at [59]:
I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA [sic SRC] Act and in the events which happened:
(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford's claim for compensation;
(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii) to do so in the circumstances further where Telstra's s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford's claim originally made on 1 May 2002 had been accepted.
39 In my judgment, that decision provides a clear answer to the appellant's contention now under consideration. If, as the appellant asserts, the respondent has, by accepting liability for payment of medical and like expenses which relate to conditions which extend beyond its initial acceptance of a musculo-ligamentous neck strain, extended or redefined the accepted injury, that did not preclude the respondent or the Tribunal in relation to the decisions now under review from considering whether that condition or those conditions resulted from the car accident.
40 The decision of the Full Court in Lees v Comcare (1999) 29 AAR 350 does not detract from that conclusion. As explained by Conti J in Hannaford at [35]-[37], that decision concerned a different question. That was whether the Tribunal, when reviewing a decision of the respondent under s 14 about the nature of an injury, had power to make further decisions on matters the respondent had not by then determined as to the extent of permanent incapacity and non-economic loss.
41 I would also reject the contention in the particular circumstances of this matter in any event. That is because the respondent itself, with the appellant's agreement recorded in [10] above, did in any event consider whether any of the constellation of conditions or symptoms asserted by the appellant to be compensable were attributable to the car accident in whole or in part. One may categorise the four decisions on those questions which the Tribunal reviewed as primary decisions (because the issue had not previously been determined) or as reconsiderations under s 62 of the 1988 Act (because there had been some implicit determination about the extended nature of the injuries by the payment of certain medical and like expenses). It does not matter. The respondent was empowered to, and by its agreement with the applicant required to, make decisions on those questions. The Tribunal was then required to review those decisions. Each of them gave rise to the issues which the Tribunal addressed. There was no error of law on its part in doing so.
42 The appellant also made a subsidiary argument based on the Tribunal having said at [40], when considering Issue 1, that the evidence led to the view that the appellant recovered from the car accident some time ago. It was argued that the Tribunal should have limited that conclusion to the musculo-ligamentous neck strain. In the context of that part of the reasons of the Tribunal, it is clear that is what the Tribunal meant to say. That was the content of the medical evidence being considered at the time. It was the finding under the heading of Issue 1 in paras [38], [45], [46] and [48] of its reasons. The Tribunal's conclusion is confined to that injury. In [40] itself there is a reference to "soft tissue injury". In my judgment that contention must be rejected.
43 There was also an attempt to demonstrate error on a question of law by the Tribunal in the way it reached its conclusion on Issue 2. The Tribunal accepted that bulging of cervical discs was identified by MRI scans in 1991. Because the trauma subsequent to the car accident occurred (it was put) "in the 1990s", including the fall from a horse in 1991 when the appellant fractured her skull, it was argued that the Tribunal should have concluded that the disc bulging was not in existence at the time of the car accident and was caused by it, especially as there was some medical evidence that the observed disc bulging could reasonably be attributed to the car accident, and because such bulging should not have been attributed to degenerative changes in a person then only 32 years old.
44 The contention, as then developed, asserts that the respondent had "failed to establish that the disc bulge was not in existence at the time of [the car accident] AND that the disc bulge was not caused by the trauma of" the car accident.
45 In my judgment, that contention must fail. In the first place, routinely there is no onus on the respondent to prove the negative of an assertion made by a claimant for compensation. If a particular claim is made, the respondent is obliged to consider and determine it. The respondent's functions (and those of the Tribunal on review) under the 1988 Act are relevantly to make determinations on claims made under the 1988 Act. The determinations required to be made by the respondent (and the Tribunal on review) in relation to the reviewable decisions were whether the appellant had suffered a compensable injury resulting in incapacity for work in the car accident (s 14), including the nature of the injury or injuries, and whether the particular medical and like treatment in respect of which the appellant had incurred a cost and claimed compensation was treatment "obtained in relation to" the injury (s 16). That was what the agreement referred to in [10] above called for. The Tribunal approached its task that way. It identified what injuries the appellant sustained as a result of the car accident, and then it considered whether the claimed medical expenses were incurred in relation to treatment for any of those injuries. Naturally, it did so by considering the appellant's particular contentions. It was not required to consider whether it was satisfied that the appellant's degeneration of her cervical spine, in relation to which she has incurred medical expenses (which have not been paid by the respondent as compensation) was not at all attributable to the car accident; it was required to consider whether that cervical spinal degeneration was at least in part attributable to the car accident. As was emphasised in McDonald v Director-General of Social Security (1984) 1 FCR 354(McDonald) by Woodward J at 357-358, it is important to clearly identify the question or questions which the review by the Tribunal throws up. In respect of each of Issues 1 to 6 (and indeed in respect of Issues 7 and 8), the real issue was whether, as a result of the car accident, the appellant had suffered an injury or injuries which gave rise to the conditions or symptoms in relation to which the appellant had been given treatment, and so in relation to which she claimed compensation for those expenses. I have used the expression "gave rise to" as encompassing causing or contributing to any of those conditions or symptoms, because the submissions did not assert any more refined causation question.
46 So stated, if the Tribunal was in doubt about the answer to that question or those questions in relation to the particular conditions or symptoms, the claim in relation to them would not succeed. As its reasons indicate, with somewhat different degrees of emphasis, the Tribunal broadly speaking did not really even have doubt about the answer to Issues 1 to 6, or indeed Issues 7 and 8.
47 The second reason why that contention must fail is simply that it involves no error of law on the part of the Tribunal. The Tribunal, in addressing in particular Issue 2 (although it said the question relating to Issue 1 was also relevant), noted that there was no evidence of degenerative changes in the cervical spine on the MRI taken in 1990, but that the first sign of annular bulging was observed in 1991. It was mindful of the points made by the appellant. Why should degenerative changes have occurred by 1991, in such a relatively young person? What other causes for that degeneration might explain its appearance in 1991? Why should the car accident not have played a part in its onset or progress? It considered those questions. It considered the medical evidence. It has reached a decision on a question of fact that it is not probable that there was any connection between the car accident and that condition. There was evidence on which it could reasonably have reached that view. Consequently, I do not consider it is shown to have erred in law in doing so in any event.
48 Ground 2.4 of the grounds of appeal, as developed in submissions, had two limbs.
49 Firstly, it was argued that the Tribunal wrongly confined itself to determining whether the respondent could only be liable for medical and like expenses flowing from the originally accepted injury, that is the musculo-ligamentous neck strain. I reject that contention, simply because I do not consider the Tribunal approached the review of the four decisions in that way. The issues it identified demonstrate that only Issue 1 reflects such a narrow approach. That was a starting point, not a finishing point. Its outcome on Issues 7 and 8 also demonstrates that. In my view, there is no demonstrated error of law on the part of the Tribunal. In this context, the reference to cases such as Canute v Comcare (2005) 226 CLR 535 discussing the way in which the extent of impairment from an accepted injury should be measured when the impairment is increased by a second "injury" resulting from the initial injury, which itself falls into the definition of "impairment", are not apposite. To address the questions it identified, the Tribunal was mindful that certain of the conditions or symptoms in issue might indicate the sequelae of the musculo-ligamentous neck strain or might indicate a different injury, and be compensable on one or other of those bases.
50 Secondly, the appellant argued that the Tribunal erred in failing to consider credible evidence (both medical and that of the appellant herself) of a causal link between the appellant's other conditions and symptoms, including her headaches, gastric problems, and psychiatric condition in rejecting those claims. That line of argument is also rejected. It is rejected because the Tribunal is not shown to have failed to have regard to material evidence on those questions. The premise for the asserted error of law is not made out. In addition, in my view, the submissions demonstrate that the real nature of this attack upon the Tribunal's decision and its reasons is a factual one only. It raises no question of law. It is really a complaint that the Tribunal should have preferred different evidence to that which, for the reasons it gave, it did prefer; and that the Tribunal should have placed greater weight on the appellant's own evidence.
51 The remaining question of law concerns the onus of proof, referred to as question 2.1 above. It was put on the appellant's behalf that "the onus of establishing a change of circumstances such that the [r]espondent is thereby relieved of making payments [of] weekly compensation rests upon the [r]espondent". By inference, that proposition is extended to relief from making payment for medical and like expenses. Reliance was placed upon Commonwealth v Muratore (1978) 141 CLR 296 at 301-303 (Muratore) and Commonwealth v Borg [1991] FCA 710 (Borg).
52 It is of course implicit in that contention that, at the time of the four determinations under review by the Tribunal, the respondent was routinely paying medical and like expenses in relation to conditions and symptoms the subject of those determinations.
53 The Tribunal's approach to Issue 1 was expressed in [38] of its reasons. It said:
The question of whether [the appellant] has recovered from the compensable injury (which, it will be recalled, is "musculo-ligamentous neck injury") is to be decided on the balance of probabilities, taking into account the principles set out in McDonald v Director-General of Social Security (1984) 1 FCR 354.
54 In McDonald 1 FCR 354 Woodward J said at 357-358:
There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s. 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review …
Obviously someone must set in motion the process which establishes the entitlement, and that will normally be done by or on behalf of the person concerned, but the Act does not create a legal onus to prove all relevant aspects of a claim of permanent incapacity … But I think it would be artificial to describe this situation in terms of the legal onus of proof.
…
It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn - but it is not helpful to categorise this common-sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it, and in the present case the Social Security Act 1947 (Cth) does not.
If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.
There is equally no provision in either the 1971 Act or the 1988 Act explicitly imposing either a legal or an evidential onus of proof. The observations of Jenkinson J in that case at 369 are to the same effect.
55 As I have indicated above, in my view, the Tribunal has properly understood and applied those observations.
56 The decisions to which the appellant referred do not indicate that that approach is incorrect.
57 Muratore concerned an application for judicial review of a determination made under the 1971 Act that an employee was no longer entitled to compensation for partial incapacity because (as the 1971 Act then provided) he was able to earn an amount not less than his average weekly earnings before the compensable injury. Under s 63(1)(b) of the 1971 Act (as then in force) judicial review amounted to a hearing de novo. On judicial review, the judge of the Workers' Compensation Commission of New South Wales ruled that the onus of proving the matters to support the original determination being varied was the employer, and that it had not established those matters. That approach was upheld by the High Court. It followed an earlier decision in Phillips v The Commonwealth (1964) 110 CLR 347.
58 In Borg the Full Court (Sweeney, Jenkinson and Gray JJ) decided that approach applied to the Tribunal: see per Jenkinson J at pp 24-26. His Honour referred to, and relied upon, the decision of the Full Court in McDonald in that regard.
59 Importantly, therefore, the starting point is to recognise (as was pointed out by Woodward J in McDonald at 357) that, because the Tribunal stands in the shoes of the primary decision-maker, there is no legal onus of proof arising from the fact that it is conducting a review. See also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.
60 Next, when the decision-maker (be it the respondent or the Tribunal) is considering an issue arising under the 1988 Act, there is strictly speaking no legal onus of proof. But the practical position, as explained in McDonald, is that the nature of the determination to be made will indicate what the decision-maker should do if left in a state of uncertainty. In Muratore, Jacobs J (with whom Gibbs CJ, Stephen and Aitkin JJ agreed) pointed out at 299 the Commonwealth conceded that in cases such as Phillips, where the Commonwealth sought a determination that a condition of total incapacity no longer existed, the Commonwealth bore the onus of establishing that fact. In Muratore, that was held to be the nature of the issue, because the Commonwealth sought to show in reality that there was no longer physical incapacity for work producing an incapacity to earn wages (at 301-302). It did not decide that, once liability in respect of an alleged injury had been accepted, the respondent necessarily had the onus of proving a change of circumstances if it was to determine any compensation related issue concerning that injury. Neither the 1971 Act nor the 1988 Act so provided. The same approach is evidenced in Borg, where there had been an accepted claim for weekly compensation arising from an injury, and then a challenged decision that there was from a particular time no ongoing incapacity which entitled the worker to further weekly payments: see per Jenkinson J at 23-26. Heerey J in Comcare v Nichols [1999] FCA 209 at [18]-[21] summarised the correct position, in my view, accurately.
61 I do not consider that the decision of Sackville J in Power v Comcare (1998) 89 FCR 514 assists the appellant. That matter concerned the power of the Tribunal to determine whether a condition in respect of which compensation had been paid had in fact ever been causally related to his work: see at 526-527. His Honour's decision on that topic is then reflected in the Full Court in Hannaford as discussed above. Similarly, the decision of Stone J in Lang v Comcare (2007) 94 ALD 141 focused relevantly on the jurisdiction of the Tribunal to have made the decision it did at [41]-[52], and then on the adequacy of the reasons for decision of the Tribunal at [53]-[56]. On the latter point, the appeal succeeded. On the issue of onus of proof, her Honour at [24] made it clear that the practical onus which was identified by the nature of the issue the Tribunal was to consider was not altered by the mere fact of the respondent having paid some medical expenses in relation to a condition apparently beyond the accepted injury; that was equally consistent with an error on the respondent's part. Her Honour at [28]-[29] was also satisfied that, although the Tribunal in that case had not specifically referred to the onus of proof, it had in substance correctly applied the onus as explained in Borg.
62 In this matter, I do not consider that the Tribunal has misconceived how it should approach the various questions which, by agreement, it was required to address to properly conduct its review.
63 In each instance, the nature of the decision required the Tribunal to be affirmatively satisfied that the car accident had caused or contributed to the particular condition or symptoms in relation to which the appellant had sought treatment, and so had incurred expense. That is so because that was the common starting point of the parties in accordance with their agreement as noted at [10] above. The applicant asserted that the expenses incurred in respect of those conditions or symptoms were compensable, because they resulted from the car accident. That issue had not previously been determined in any formal sense by the respondent. If it had paid compensation by way of medical expenses in respect of them, as the respondent did in Lang, I would not regard that as giving rise to any formal admission of liability to pay compensation in respect of any further medical expenses incurred in respect of those conditions or symptoms. It is also the case because the nature of the decision in each instance, determined independently of their agreement, required the respondent and on review the Tribunal to be positively satisfied that the condition or symptoms were a result of an injury or injuries sustained in the car accident, and so to be satisfied that the expenses in respect of that condition or those symptoms were compensable.
64 In addition, as the Tribunal's reasons indicate, with one qualification which is addressed in [66] below, the Tribunal in any event has reached an affirmative state of satisfaction as to the asserted relationship between the car accident and the relevant condition or symptoms.