Comcare v O'Connell [2013] FCA 111 | Case summary

Judgment (7 paragraphs)

[1]

BACKGROUND TO THE APPEAL 1 This appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) involves three questions of law but in truth is based on a series of misconceptions. 2 The questions of law are: (1) What does the expression "need for some supervision and direction in the Activities of Daily Living" in table 5.1 of the second edition of the Guide to the Assessment of the degree of Permanent Impairment (the Approved Guide) mean - in particular the references to "need" and "direction"? (2) Was it open to the Tribunal to find the Respondent's partner was a "suitably qualified person" within the meaning of table 5.1 of the Approved Guide? (3) Did the Tribunal discharge its obligation to provide reasons for its decision in accordance with s 43(2B) of the Administrative Appeals Tribunal Act 1977 (Cth) (the AAT Act)? 3 There was no dispute about the fact that the Tribunal, in exercising its functions in accordance with s 43(1) of the AAT was bound, as Comcare was originally bound in its decision-making, to determine the degree of permanent impairment of the respondent resulting from his accepted injury of post-traumatic stress disorder (or PTSD) "under the provisions of" the Approved Guide, as provided for in s 24(5) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Equally, it was not in dispute that the respondent's claim for increased compensation was subject to s 25(4) of the SRC Act which provides that there was to be no further compensation payments to the respondent unless there had been a subsequent increase in the degree of his impairment of 10% or more. Other relevant provisions of the SRC Act included s 28(1) providing for the preparation of the Approved Guide and s 28(4) which ensures the provisions of the Approved Guide are binding on, relevantly, both Comcare and the Tribunal. 4 It was common ground that Chapter 5 of the Approved Guide was in issue. Because of the significance of many aspects of this chapter to the resolution of the appeal, the majority of it is reproduced below: For the purposes of Chapter 5, Activities of Daily Living are those in Figure 5-A (see below). Figure 5-A: Activities of Daily Living Activity Examples Self care, personal hygiene. Bathing, grooming, dressing, eating, eliminating. Communication. Hearing speaking, reading, writing, using keyboard. Physical activity. Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning, carrying, lifting, pulling, pushing, climbing, exercising. Sensory function. Tactile feeling. Hand functions. Grasping, holding, pinching, percussive movements, sensory discrimination. Travel. Driving or travelling as a passenger. Sexual function. Participating in desired sexual activity. Sleep. Having a restful sleep pattern. Social and recreational. Participating in individual or group activities, sports activities, hobbies.

Question 1 7 The notion that this question is material to the conclusion the Tribunal reached arises from numerous misconceptions on the part of Comcare. 8 Comcare's first misconception is that the Tribunal adopted (or must be inferred to have adopted) the meaning which Dr Knox ascribed to the phrase "a need for some supervision and direction in Activities of Daily Living". As the Tribunal noted at [37]: While Dr Knox, Dr Saboisky and Dr Zsadanyi agree on many relevant points, in respect of Mr O'Connell's psychological presentation and aspects of his psychosocial functioning for example, the key point of different between them, and the matter that lies at the heart of this application, concerns the interpretation of the Comcare Guide and the phrase "need for some supervision and direction in activities of daily living" in Table 5.1. 9 The Tribunal then referred at [38] to Dr Knox's evidence that he: interpreted "some supervision and direction" to include encouragement, advice and coping strategies, including and perhaps especially in a treatment context - "direction and supervision are inherent to consultation with a psychologist or a psychiatrist". In his view, 'need' in the context of Table 5.1 refers to something that would improve an injured person's ability to function. Adopting these interpretations, Dr Knox reported that he had no difficulty applying Table 5.1 and determining that Mr O'Connell needs some supervision and direction in activities of daily living. 10 Thereafter , at [39], the Tribunal observed that: Dr Saboisky did not agree, on the basis that the activities of daily living set out in Figure 5-A must be approached "as defined by Comcare", where 'direction' is more than encouragement or the provision of advice or coping strategies, and 'need' is something that is necessary to enable a person to perform those specific activities. Dr Saboisky accepted that if encouragement, advice or coping strategies in a treatment context are considered to constitute 'direction' for the purposes of Table 5.1, then he would agree with Dr Knox that Mr O'Connell would meet this criterion at the 20 percent level of impairment. 11 According to Comcare the Tribunal must be understood as having adopted Dr Knox's (erroneous) approach to the meaning of "a need for some supervision and direction in Activities of Daily Living" because there is no other way to explain the statement of the Tribunal at [50] that: On the evidence of Mr Goch and Ms Gardiner, I am reasonably satisfied that Mr O'Connell needs some supervision and direction from Ms Gardiner in respect of aspects of self-care and personal hygiene, communication, and social and recreational activity. Whether or not her encouragement or nagging of Mr O'Connell is properly characterised as supervision and direction is beside the point of Mr O'Connell's need. His need is clearly established by the evidence of Dr Knox and Mr Goch, and to a lesser extent Dr Saboisky, and I so find. 12 There are two problems with this proposition. 13 First, the Tribunal does not say it is adopting Dr Knox's approach to the meaning of "a need for some supervision and direction in Activities of Daily Living". 14 Secondly, Comcare has overlooked the significance of [45] of the Tribunal's reasons in which the Tribunal identifies its own approach to the phrase, which differs from that of all of the medical experts. Given that the meaning of the phrase was a matter for the Tribunal, and not expert evidence, the fact that the Tribunal preferred the meaning it gave to the phrase is neither surprising nor a cause for concern. At [45] the Tribunal said: These are all matters of degree. When determining whether an injured employee needs some supervision and direction in activities of daily living, it is necessary to assess the overall effect of the injury on the particular person as well as the character and content of the interaction that person has with others who are suitably qualified to provide direction in activities of daily living. For a person who is only mildly affected, encouragement to do something or not, or to do it differently may not meet the test of 'some' 'direction', whereas for a person who is badly affected, encouragement may well rise to a higher level of guidance and instruction, thereby meeting that test. Each case will turn on its own facts and must be assessed on its merits. 15 This approach, in my view, is unimpeachable. Moreover, Comcare does not suggest any error in this paragraph. Instead, Comcare chooses to ignore the paragraph and attribute Dr Knox's view of the meaning of the phrase to the Tribunal. 16 Comcare's second misconception is to read the Tribunal's decisions as involving interim findings about different activities of daily living each of which must be considered in perfect isolation from the other. Hence, according to Comcare, if one takes the activity of "self care, personal hygiene" as an example (presumably, Comcare's best example) then: (1) Based on the evidence of the respondent's partner the Tribunal should be understood at [33] as saying that it was not satisfied that the evidence established that the respondent needed some supervision and direction in aspects of personal hygiene. (4) Based on the evidence of Mr Goch, it could not be said that anything was added to the evidence of the respondent's partner about personal hygiene as opposed to other aspects of activities of daily living and the Tribunal so found at [36]. (5) Despite this, with no additional material other than the competing interpretations of Dr Knox and Dr Saboisky, the Tribunal was satisfied that the respondent needed some supervision and direction in respect of personal hygiene (at [50]). 17 I find every step in this reasoning process unpersuasive. 18 First, Comcare's approach to the evidence of the respondent's partner is without foundation. Comcare put that the partner's evidence amounted to nothing more than encouragement or reminding the respondent about personal hygiene. When questioned about the evidence recorded by the Tribunal at [32] that the respondent "only manages by me constantly reminding him and insisting that he does the tasks referred to above" (my emphasis) Comcare said this insistence related to activities other than personal hygiene. In fact, the statement of the respondent's partner, from which this evidence was taken by the Tribunal, makes it plain that this answer was incorrect. The clear evidence from the respondent's partner was that the respondent only managed his personal hygiene because the respondent's partner constantly encouraged, reminded and insisted upon him doing so. 19 Secondly, the notion that the Tribunal's statement at [33] that the evidence of the respondent's partner was found by the Tribunal to be insufficient to establish the requisite need is untenable. In fact, the Tribunal said: [The respondent's partner's] evidence provides an important insight into [the respondent's] psychosocial behaviour and functioning from a domestic care perspective. It also suggests that [the respondent's]may require some supervision and direction in aspects of communication, personal hygiene and social activities. 20 Comcare's point was that because the Tribunal said that the partner's evidence only suggests that the respondent may need some supervision and direction it was apparent that the evidence was found by the Tribunal to be insufficient for this purpose. This submission deserves short shrift. It offends the basic principle that reasons are to be read as a whole. It offends as well the fundamental point that Gleeson CJ made in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [14] that: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. 21 It offends also the principle that the Tribunal's reasons are not to be read "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]). 22 The Tribunal plainly considered that the evidence from the respondent's partner supported the conclusion that the respondent needed some supervision and direction in the activities of daily living, including in respect of personal hygiene. 23 Thirdly, although the evidence of Mr Goch does not refer to personal hygiene I find untenable Comcare's submission that his evidence could not be seen as relevant to the respondent's need for some supervision and direction in respect of personal hygiene. Comcare's submission appear to overlook the basic principle that "[p]roof on the balance of probabilities, indeed on the beyond reasonable doubt standard, may be established on the basis of circumstantial evidence" and that any fact "can be established by a process of inference which combines primary facts like "strands in a cable" rather than "links in a chain", to use Wigmore's simile: Wigmore on Evidence, 3rd ed (1981) vol 9 at 412-444 [2497] referred to in Shepherd v The Queen (1990) 170 CLR 573 at 579" (at [91]) (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [90] and [91] per Spiegelman CJ). 24 The Tribunal recorded Mr Goch, the respondent's treating psychologist, as giving written evidence that the respondent suffers from "severe distress" and maintains "only a basic capacity for activities of daily living", has a "significant impairment" in terms of his daily living, "requires significant direction (usually by his current partner) and has a requirement for support while completing even basic tasks (eg painting furniture)…". It is not apparent to me why the Tribunal could not rationally have seen this evidence as supporting the evidence of the respondent's partner both generally and about her having to constantly encourage and insist upon the respondent attending to his personal hygiene. Comcare's submissions to the contrary did not rise above mere assertion that because personal hygiene was not specifically mentioned by Mr Goch his evidence could not be relevant to that issue. This ignores altogether the general thrust of Mr Goch's evidence about the significant direction the respondent requires to complete even basic tasks (painting furniture being but one example) and the respondent's significant impairment. No doubt this is why the Tribunal found Mr Goch's evidence to be largely consistent with the evidence of the respondent's partner (at [36]). 25 Fourthly, Dr Soboisky's evidence could be seen by the Tribunal, on a rational basis, also to support the evidence of the respondent's partner about the respondent needing some supervision and direction in Activities of Daily Living. The Tribunal did not, and did not need to, adopt Dr Knox's meaning of this phrase to reach this conclusion at [50]. This is because Dr Saboisky had given evidence that the respondent needed support to write even the most basic letters or to help him negotiate such simple matters as house cleaning and to organise his personal affairs. Again, it is true that Dr Saboisky's evidence as referred to by the Tribunal does not mention personal hygiene. But the idea that Dr Saboisky's evidence about the general low level of functioning of the respondent when confronted with even simple activities could not be seen by the Tribunal as supporting the evidence of the respondent's partner about the full range of the respondent's problems, including his need for someone to insist that he attend to personal hygiene, is without merit. And, in addition, the Tribunal had the evidence of Dr Zsadanyi, referred to at [46], that the respondent had been suicidal, remains severely depressed and withdrawn and "at times neglecting his activities of daily living". In the face of this evidence the Tribunal concluded at [50] that: On the evidence of Mr Goch and Ms Gardiner, I am reasonably satisfied that Mr O'Connell needs some supervision and direction from Ms Gardiner in respect of aspects of self-care and personal hygiene, communication, and social and recreational activity. Whether or not her encouragement or nagging of Mr O'Connell is properly characterised as supervision and direction is beside the point of Mr O'Connell's need. His need is clearly established by the evidence of Dr Knox and Mr Goch, and to a lesser extent Dr Saboisky, and I so find. 26 This conclusion was both reasonably open on the material and, in my view (for what it is worth given that the merits are a matter for the Tribunal alone), manifestly the correct and preferable conclusion. 27 Comcare's third misconception is apparent from its submission that the requirement that the person has a need for some supervision and direction must mean that, without supervision and direction, the person is incapable of performing the activity; mere optimisation of the performance of the activity is insufficient. As the respondent submitted, this ignores the fact that the requirement is a "need" for "some" supervision and direction in Activities of Daily Living. The word "some" must be given meaning as it is the factor distinguishing a 25% permanent impairment from a 30% permanent impairment, the latter requiring "a need" for supervision and direction rather than "a need for some" supervision and direction. In this context "some" means "to a certain degree or extent" (Macquarie Dictionary). This is why the Tribunal's references to questions of degree at [45] demonstrates that, contrary to Comcare's submissions, the Tribunal did not accept Dr Knox's approach to the meaning of the phrase and, indeed, did not fall into error by finding that the evidence led to the conclusion that the respondent did have some need of the requisite type at [50]. 28 Comcare's fourth misconception is one of principle. When asked why Dr Knox's statement that "You haven't had a shower in four days; go and have one" was not a direction Comcare said that this could be characterised as either a request or a direction and that, accordingly, it would be mere speculation for the Tribunal to treat this as evidence of a need for direction contrary to the reasoning in Holloway v McFeeters (1956) 94 CLR 470 and Tisdall v Webber (2011) 193 FCR 260; [2011] FCAFC 76. It is important that this error on Comcare's part be corrected. 29 In Holloway v McFeeters the issue was whether negligence could be found in circumstances where the evidence was consistent with a number of hypotheses only one or some of which involved negligence. In this context, negligence could not be found because hypothesis is not inference, an inference being "the most probable deduction from the established facts" (at 477). In Tisdall v Webber at [126] Buchanan J made the same point, albeit in a different context, that inference involves legitimate deduction and not mere speculation, guesswork or assumption. These decisions focus on the need for evidence from which facts may be found or inferred. If there is no such evidence from which facts may be found or inferred (inference involving rational deduction and not speculation) then, no doubt, the fact may not be found. If, however, there is evidence from which facts may be found or inferred (inference involving rational deduction and not speculation) but there is a further question whether the facts satisfy or do not satisfy a statutory description an entirely different principle is in play. The principle in play is that if the statutory description involves the use of ordinary words, which do not have any special or technical meaning, the question whether the evidence reasonably admits of different conclusions as to satisfaction or not of the statutory description is a question of law, but if different conclusions are reasonably open the selection of the correct conclusion is a matter of fact (Hope v Bathurst City Council (1980) 144 CLR 1 at 8). 30 In the present case there was ample evidence of the respondent's needs in respect of performing the relevant activities of daily living. The evidence did not leave the question of findings about the respondent's needs in that regard at the level of speculation or guesswork. The issue was whether the needs amounted to a need for some supervision and direction as specified. The statutory description involved ordinary English words. Let it be accepted that the evidence, at least about personal hygiene, reasonably admitted of different conclusions as to whether the facts satisfied or did not satisfy the statutory description. It necessarily follows that the Tribunal's finding that the statutory description was satisfied involves no question of law. It is a finding of fact, reasonably open on the available material. Accordingly, Comcare's submission that the evidence was equally capable of being characterised as a need for a request or encouragement (in contrast to a need for some supervision and direction) conflates two separate principles which have different spheres of operation. 31 For these reasons the first question of law does not arise. The Tribunal did not err in finding that on the available material the respondent had some need for supervision and direction in the nominated activities. In so finding it was not necessary or appropriate for the Tribunal to attempt to give an exhaustive definition of the meaning of the phrase, the Tribunal's fact-based approach as exposed at [45] and [50] of its reasons being apt for the purpose of the decision it had to make.

Question 2 32 Comcare submitted that it was not reasonably open to the Tribunal to find that the respondent's partner was a "suitably qualified person" as defined because the requirements in the definition of that term for "the necessary experience and skills to provide appropriate direction" are features which distinguish a "suitably qualified person" from a "suitable person". In other words, merely being a "person capable of responsibly caring for the employee in an appropriate way" is the requirement to be a "suitable person". By definition, therefore, the additional requirements of "the necessary experience and skills to provide appropriate direction" to be a suitably qualified person are of a different kind from the skills and experience sufficient to satisfy the requirements for being a "suitable person". 33 The two definitions are different and the differences must be given meaning. That said, Comcare accepted, as necessary given the definitions, that a suitable person may also be a suitably qualified person. Comcare also accepted that the requirement for "the necessary experience and skills to provide appropriate direction" did not necessitate any particular professional qualification. Comcare's point was that evidence of a caring partner, capable of responsibly caring for the employee in an appropriate way, is not evidence of the necessary experience and skills to provide appropriate direction, the latter involving some notion or sense of authority on the part of the person to require compliance with his or her directions. The problem for Comcare is that even assuming this to be so there was sufficient material before the Tribunal to make it reasonably open to find that the respondent's partner was a suitably qualified person. This material included: (1) Evidence from the respondent's partner that she often has "to remind and encourage him to shower and shave", is "required to re-explain things numerous times [sic] simplify what [she is] talking about", has to remind him numerous times to pay bills and ends up mostly doing it herself, needs to constantly remind him about everyday tasks and insist he does them, has to "read through all of the incoming mail" as he cannot do so, must fill out all forms for him, and try to get him to exercise, as well as her evidence of the respondent's deterioration when they separated for two weeks (at [32]). (6) Evidence from Mr Goch that the respondent "requires significant direction (usually by his current partner)" to carry out basic functions (at [35]). 34 This evidence was sufficient to make reasonably open the Tribunal's finding that the respondent's partner was both a suitable person and a suitably qualified person. The evidence discloses that the respondent's partner was effectively supervising and directing virtually every aspect of the respondent's basic living needs. If some element of authority is required by the definition (which I doubt but assume for the purposes of argument) then the respondent's partner undoubtedly had it in her dealings with the respondent. In such circumstances it is hardly surprising that the Tribunal concluded that, irrespective of her lack of specific qualifications, the respondent's partner possessed the "experience and skills in respect of [the respondent's] self-care, personal hygiene, communication and social and recreational activities" so as to make her a suitably qualified person as defined. 35 For these reasons question 2 should be answered in the affirmative. It was reasonably open to the Tribunal to find the respondent's partner was a "suitably qualified person" within the meaning of table 5.1 of the Approved Guide. The Tribunal's decision cannot be impugned on this basis.

Comcare v O'Connell

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