Commonwealth of Australia v. Scott, William Dawson [1979] FCA 3

) ) WESTERN AUSTRALIA DISTRICT REGISTRY) W.A. No. G17 of 1978 ) )

COMMONWEALTH EMPLOYEES! COMPENSATION TRIBUNAL BETWEEN: ™ COMMONWRALTH OF AUSTRALIA ; Appellant

• and -

This 1s an appeal by the Ccmmenwealth of Australia ("the

appellant") under s.95 (1) of the Compensation (Commonwealt!:

Government Employees) Act 1971 ("the Act") from a determination dated 12 January 1978 of the Commonwealth Employees! Compensat? o:- Tribunal ("the Trabunal"), Section 95 (1) requires that such an

The course the matter has taken 18 canvassed in the three sets of reasons of the Tribunal dated 15 July 1977, 15 September 1977 and 12 January 1978 respectively and there 15 no need to

Before his retirement at about the end of 1976 William Dawson Scott ("the respondent") was employed as an Aircraft Maintenance Overseer with the Commonwealth Department of Transport and had been employed by that department for slightly more than 30 years, In late 1975 he began to complain of a hearing disorder a high frequency buzzing in his ears. This has been diagnosed as tinnitus of the Fight ear. Associated with 1t was a binaural sensori-neural high tone hearing loss which had been noted at tests of the respondent's hearing in previous years. In about June 1975 he had suffered a heart attack and the complaints of the

tinnitus began about a month after his return to work in September

1975 following sick leave taken because of the heart condition.

His capacity for work deteriorated from this time onwards and again, 2n Lebruary 1976, he toox more sick leave and remained

In December 1975 the respondent instituted a claim under the Act directed to the Commissioner of Employees' Compensation for compensation on the basis that his loss of hearing and tinnitus resulted from exposure to aircraft engine no1lse over a long period in his work. The farst determination of compensation was dated 25 March 1977 and a lump sum award for an injury was

meds under s.39 hy the dclnga « of theo Comc-iseLoner.

The respondent sought the reconsideration of his claim by the Tribunal pursuant to 5.63 (1) (a) of the Act. .in so doing he requested a determination under s.,29 4n regard to his incapacity

The evidence put before the Tribunal on the two occasions that it heard the matter, namely 15 July 1977 and 13 December 1977 came from medical sources, from oral evidence given by the

respondent's colleagues at work and from the respondent himself.

By the tame of the delivery of the September 1977 reasons

the medical evidence supported the conclusion that he was affected

by the tinnitus and the heart condition and suffered some incapacity

This was the evidence contained in reports of hearing tests, reports by Dr. Hughes and Mr, Sunderman and the oral evidence

of Dr. Clements who had conducted one of the above hearing tests, which latter oral evidence the Tribunal particularly relied upon. In addition the evidence of a colleague at work given at the

July hearing confirmed the deterioration in his work performance after about October 1975 and the fact that the respondent compiusr- of his tinnitus. The responjent's own evidence at this hearty was to the effect that he was greatly distressed by the tinnitus,

that it handered his sleeping and recovery from the heart attack

and that consequently he was always very tired at work.

The evidence at the December 1977 hearing was more extersive as regards the respondent's incapacity for work. The second of tw medical reports from Dr. Chew specifically dealt with the nature and extent of he lneapecit i ft, rok scueludarg tha: 'Mr. i0M 1s mqdically unfit for cmployment invelving physical and/or montal

exertion and stress. He 1s also unable to work regularly and

consistently on account of his tinnitus and :elated symptoms."

Evidence was also this time given by two of the respondent's

colleagues at work (including further evidence from the colleague

abovementioned) confirming the difficulties the respondent suffered before his retirement and that he was incapable of performing his work with the department. In the opinion of the colleague who had not previously given evidence the respondent

"was not really capable of doing any sort of job at all."

At the conclusion of the evidence at the July 1977 hearing

(a) the cmployinent of the claimant by the Commonwealth was a contributing factor to the contraction of the tinmstus;: and

(c) the retirement ot the clainant fron the Public Service was, inter alia, on the grounds of his tinnitus;

(ad) the claimant 1s not toally ancapacitated for work unless as an "odd lot;"

(ce) the degree of doafness the claimant sutfered result-ny from his employment 1s of or about the order of 7.24% loss of hearing.

The Tribunal 1n its July 1977 reasons found as matters of fac the concessions by the apnellant and set aside the determination of 25 March 1977. It then adjourned the matter "for leqal

submissions by the parties on the effect of the facts so found,"

The appellant in its submissions then sought to retreat from concession (c) on the ground that it had now been informed that the respondent's heart conditton was the sole cause of his retire~

Tro ite Septamber L977 reacons the Prelunal decidad thar ave

it reconsidered the matter 1t wounid come to the same conclusion or

the facts covered by concession (c) cven though it maght now

'be possible to say that the respondent's retirement was in fact

an part due to the heart condition. The Tribunal also found that the tinnitus condition was a condition different from the hearing loss and that the lump sum award for the latter under s.39 in

the determination of 25 March 1977 was separate from and did not prevent or meet a claim under s.46 of the Act for partial incapacih for work. Its concluding words are important to note, It set aside the determination of 25 March 1977 and adjourned the hearing to a later date when it would "then give appropriate directions for the continued reconsideration of this matter to enable a determination to be made in substitution for the determination sic aside." To that stage it had spoken of only one dcterminaticn havang been made, that of the delegate on 25 March 1277 and

spoke of the "continued reconsideration of this matter."

At the December 1977 hearing the appellant called no evidence and in doing so refused to put into evidence a méed.cal report of the respondent's conditicn obtained by 1t under s.60 of the Act. As a result of this refusal the Tribynal indicatcd duting argument that it would draw an unfavourable inference against the appellant. After reiterating this in its January 1978 reasons and after discussing the evidence that the resperdent had adduced at the hearing to the effect that he was totally incapacitated for work it stated that 1t drew the ainfercnce that the report that had not been put in evidence accorded with the respondent's evidence The Tribunal found that the respondent's labour was unsaleable in any market reasonably open to him. We

wa. dhedetore tolully anes acacat) 6 oot werk and entitted Lt

compensation under s.45 of the Act. Section 39 (14) necessitated

the further finding that he was not entitled to compensation under

The Tribunal made 1ts determination in the following terms:

"Accordingly in substitution for the determination of 25th March 1977 1n this matter set aside on the 15th September 1977, I determine: -

(a) the claimant, William Dawson Scott, contracted diseases namely tinnitus to the right car and binaural sensozri- neural high tone hearing loss to which his employment was a contributing factor;

(c) he as~entitled to payment of compensation under section

The appellant appealed ayainst this determination upon many

grounds but at the hearing of the appeal abandoned atl of them

and by consent substituted two amended grounds of appeal as

It was not open to the tribunal to find that the responidenar

was totally incapacitated and cntilied to payment cL

compensation under section 45 of the Compensation (Australian Government Nmployees) Act 1971 as amendcd.

The tribunal misdirected itself in respect of the fact

that the appellant aid mot call evidence at the hearing

The first ground of appeal raises, aSit was acknowledged by

the respondent, a question of law. liowever the appellant is

limited on this ground to the contention that there was no evidence -

at all, as opposed to a contention of insufficiency of evidence or

of a lack of satisfactory evidence, upon which 1t was cpen to the

co Tind tetal incay Git. Lor wore. Hewever the app cd lban

Under this ground cf appeal three aryuments were tendered. In the first instance counsel contended that in the September 1977 reasons the Tribunal had made a finding of partial incapacity for work, and that 1t could not go back on this decision. Secondly it was contended that the respondent's case throughout the hearings before the Tribunal was presented on the basis of his being only partially incapacitated for work. In each instance theie was, it was submitted, a change of ground by the respondent without notice of the change being given to the appellant. Fanally counsel contended that the Tribunal misapprehended the effect of certain evidence, namely that of Dr. Chew, contained in the two medical certificates put into evidence at the final hearing and that the consequence of correctly construing these certificates was that there was no evidence at all on which a finding of total incapacity

I will deal with each of these submissions in turn, but IT must make the comment generally that I am far from satisfied that cach of them raises a question of law. MWowever in the light ef the conclusion to which I feel bound to come there is no need for ie to analyse the submissions on this aspect of the case. The first two submissions could perhaps have been put forward as breaches of the principles of natural justice, 1.c. that natural justice wes denied to the appellant, but such an argument was not develones arc

in my view could not have been put forward with any prospects of

As to the submissior that the Tribunal had made a finding tec the oliect that the respondent was only partially incapacrlatent

for work and was mot entlitleu ultimately to rand thet he was

totally incapacitated for work, I am unable to accept this contention. Assuming however that such a finding had been made and assuming further that such a finding had the status of a determination, 1t was still open to the Tribunal to vary its determination. The Tribunal as an administrative body, being the alter ego of the Commissioner expressly directed to reconsider the decisions of the Commissioner (s.63 (1)(a)) and having for this purpose all the powers conferred on the Commissioner by the Act (s.83 (1)). By s.20 (4){a) the Commissioner "of his own motion" 1s expressly empowered to reconsidcr his deterrinations. Such powers enure Lo the Tribunal and even if the above assumpticurs

be correct,.1t was open to the Tribunal to vary its determinaticn

However in my view neither assumption is justified. 1t 1s rev an my view correct to say that the Tribunal had prior to the final hearing made a determination of partial ancapacity for werk. Whis I think 1s indicated by the concluding terms of the Trahunal'tes agent andicaled that. "we wor be vs,

lookang at the sitcatron where Mr. Seott would be totally sncancbl-

It 218 in my view just not correct to say that total

ancapacity for work was introduced for the first time in the Tribunal's reasons for its final determination, or that the respondent's case was at all times based exclusively on partial incapacity for work (as correctly understocd) or that the appellant was 1n any way prevented from adequately presenting its case through lack of notice. Such a contention was not mentioned at any time during the hearings of the Tribunal. Taking this submission at best for the appellant (and further than was expressly submitted

8 on 1ts behalf) I cannot see any indication that the appellant was

The final submission in support of the first ground of aspeal was that the Tribunal had misapprehended the effect cf Dr. Chew's certificates. Such a submission would only cntail an error in law if, upon the certificates being correctly understood, there was ne evidence at all to support a finding cf total incapacixy

@ for work, In my view this submission founders on two grceunse. The Tribunal did not misconceive the evidence supplied by the certificates. I accept the respondent's contention that Dr. Chew's certificates sheuld be read in the context of their being picparceen for use at the final hearing. And even 1f the Tribunal aii misconcéive this evidence there was still other evidence, part- icularly that of the respondent's colleague Mr. Robinson, upan

which 2t was open for it to mae a finding of total incapacity

The second ground of appeal was that the Tribunal had mis-

@icccted atseif in respect of the fact that the appellant dou uot

call evidence on the final hearing. As I understand the submission the crux of the complaint 1s that the Tribunal went as far as to

say 1t drew an adverse inference from the failure of the appellant to put in evidence the medical report it had obtained prior to

the hearing. As I said during the hearing, on one view the [fr2bunal might be seen as overstating the position, in so far as 1t

indicated that it drew an adverse or an unfavourable inference. However, even 1f such a criticism 1s valid, 1t doves not avail the appellant to any significant extent. Omitting from consideration

altogether this 1unference which the Tribunal said it drew, there

still was evidence upon which to base the ultimate finding.

Whilst I find the desire of th» Tribunal to have all possibie evidence before 1t understandable, in mv view both parties must be permitted to present their cases in the way each considers most appropriate. This is particularly so when the Tribunal has atself a raght of 2ats own volition to summon a witness (5.83 (2) (a} and 1s specifically directed to give each party a fair opportunity of presenting his case (s.20 (?) (b)). For my part I would prefer

the approach indicated by Deane J. an Sullivan v Derartment cf

Transpoit 00 A.L.R. 323 at p.342-343, where his Honour gaid:

"In the ordinary case, a tribut:al which 1s under a duly to act judiczally and which has the relevant partacs before 1t will be best advised t9 be guided by the be in identifying the issues and to permit the parties tw present thelr respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory trabunal, in the proper perirarmance of its functions, will be chliged to raise issues which the partics do not wish to dispute and to tuteirfere, either by giving guidance os: by adverse ruling, with the manm.r in which a particular party wishes to present his case. Ordinarily, howcver, in the apscnce of a request for asi stats: or gquidarce by a party whe 1s unpearing in person, a tripunal Wet 2 Gah MG eb leather h, woe d be comecacug v0 tte fete that andue rarerlere oe. la rel amunier im hich ® pa ry conducts his case may, no matter how well intentioned, be

counter-productive and, indeed, even overawe and distract a party appearing 1n person to the extent that it leads to a failure to extend to him an adequate opportunity of prescnting his case."

However, there 1s no doubt that in requesting the appellant to put in evidence the report, the Tribunal acted with complete

propriety. In Hoggard v Worshrough District Council 1962 2 Q.B.

3 at p.100 Wann J. said: "Where two parties are in dispute, and it 1s the obligation of some person or body to decide caquitably between th competing claims, each claim must receive consideration and each claimant must be invited - not merely left to take the initiative 1f he chooses ~ to put forward the matcrial in the form of documents or accounts which he desires to have con3+dered; and he must be afforded un opportunity of making comment on the material put forward by rival claimants and which the council are proposing to consider."

In the present case the preferred approach of the Tribunal in circumstances where there was evidence that the respondent had shortly before the hearing been examined by a medical practitiourr nominated by the appellant, would have been to enquire whether the appellant proposed to call the practitioner or to put the repert in evidence. The witness not having been called and the report not having been put in, the Trabunal was entitled te cenel: that the findings on this cxamination were not inconsistcnt with the case as presented by the respondent. The fact that a recont examination did not. produce eviderice inconsistent with the respond- ent's case was avallable to be used as confirmatory of the zinding

Again, on this aspect of the case, in my view therc 158 evidence cr some looseness oF language on the part of the Trac Admittedly it stated that 1t would draw an adverse infercnes bat this statement 1s subsequently qualified. Moreover assuming such

an inference to have been drawn, the inference is not essential to

the ultimate finding of total capacity of work. Such a finding

was open, as I have said, on other evidence, and the exclusion

of this adverse inference, assuming 1t to be correct to see it

as the consequence of a mis- - direction, does not place in jcopardy,

(as an error of law), the Tribunal's ultimate conclusion.

In my op1znion the appeal should be dismissed with costs.

' wot lft pages are a Le copy Gt abed or Judume ntof Mr Jestor on ee