1. In this application for review the applicant seeks review of a determination dated 17 December 1981 of the delegate of the Commissioner for Employees' Compensation that a particular condition suffered by her since 30 November 1979 causing incapacity for work and necessitating medical treatment was not the result of personal injury sustained by her on 3 July 1972; was not the result of contribution by her employment to the contraction, aggravation, acceleration or recurrence of a disease; and that accordingly the respondent was not liable to pay compensation pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") in respect of the condition suffered by the applicant since 30 November 1979.

2. The applicant is aged 53 and has worked for some 12 years as a telephonist with the respondent, having commenced such employment on 9 March 1971.

3. On 3 July 1972, the applicant was at work in the respondent's premises when, as she commenced to descend a flight of stairs on her way to the employees' locker room, she slipped and slid down the stairs on her back. She landed at the bottom of the flight in a sitting position and she said that she was stunned and could not move. She said that the steps were concrete and were not carpeted. The respondent's medical officer examined her and told her to go home, and she said that by that time she had become aware of pain in her lower back. The applicant said that she attended a general practitioner on her way home and that she was then off work for two to three weeks. In cross-examination the applicant said that she could not remember exactly how long she was off work. Her leave records however indicate that she was away from work for eight days.

4. On returning to work the applicant was given light duties but after some weeks she resumed work as a telephonist and she said that she has continued to work in that capacity since then. She said that from the time she resumed work her lower back has continued to be painful especially after long periods of sitting down. As a telephonist she is required, she said, to sit all day except for morning and lunchtime breaks, and generally for an afternoon break. She said that the pain 'comes in my very low back and spreads upwards in the back'. She indicated a position very low down and to the right side of her back. She said that lately the pain travels as far as her neck and that over the years the severity of the pain has 'changed from bad to worse' and has become more frequent. Specifically the applicant said:

'... sometimes I would be all right for a few weeks, even as much as a month, two months, and then the pain would come again.

... Over the last four years, three or four years, it has become more often.'

5. The applicant said that until 1979 she had not missed work because of her back and she had not seen a doctor about her back. She had time off work in December 1979 and for about two weeks in January 1980. She then saw a Dr Mitchell and subsequently a Dr Wong. Dr Wong was apparently not available to give evidence, but a written report was tendered from a Dr Fulcher, who had taken over Dr Wong's practice, and Dr Wong's notes were also tendered. These confirm that the applicant did not see any local doctor in relation to back pain after her return to work after the fall and before 1979, but that she complained of back pain 'getting more frequent in (1978)' (from Dr Wong's notes), and 'increasing in severity especially over the past few days' (as those notes were construed by Dr Fulcher in his report). Dr Wong referred the applicant to Dr Hammond, an orthopaedic specialist. Dr Hammond saw her on 4 February 1980. He recorded in his report dated that day that he had seen X-rays showing some degenerative changes of the lumbar spine, but noted also that there appeared to be slight narrowing of the lumbo sacral disc space. He could see no significant abnormalities in the sacrum and coccyx. He proposed having lumbar discography performed and also stress views to see whether he could demonstrate any instability in her spine as he thought there may be discogenic cause for her persistent pain. In April 1980, she was admitted to hospital for a discogram. She took just over two weeks to recover from that procedure. On 21 April 1980 Dr Hammond reported that the stability films and the discography demonstrated neither spinal instability nor disc pathology. He could not find any obvious cause for her pain other than minor degenerative changes.

6. The applicant said that between 1972 and 1979 she took Aspirin and Panadol for her back pain. She is still working as a telephonist in the employ of the respondent but because she has exhausted any accrued entitlement to sick leave on full pay, she seeks to attribute absences from work that have occurred, as she claims, by reason of her back condition to a liability in the respondent to pay compensation according to the Act.

7. The applicant admitted in cross-examination that on 5 June 1977 she fell on the way to the railway station while on her way to work. She said that she landed on her knees and that consequently she needed to return to her home to change her stockings. She said that she did not notice any change in her back condition as a result of this accident and that she did not consult a doctor in relation to the incident. She acknowledged however that there would have been a certain amount of jarring as a result of the type of fall that she had had. The applicant said that it was possible that she saw a doctor in 1978 regarding an injury to her right leg, and she recalled that when she was at the Ashfield exchange she twisted her wrist, but she said that she could not remember how she did it. She admitted that it was possible that she had been away from work on 20 July 1979 with a complaint of backache. She said that she had not seen a doctor on that occasion:

'I was not sufficiently well on that day because quite often I cannot sleep for one night after the other because of my back and when I have lost a night's sleep or two or three night's sleep I am not fit to go to work the next day.'

Asked if she had ever thought of obtaining medication to assist her to sleep or to relieve her pain, the applicant said that she did not believe in taking too much medication.

8. The applicant said that when she first saw Dr Wong on 30 November 1979 he gave her Digesic which she took twice a day. She said that on 6 December 1979 he prescribed Buzon. She said that Buzon did not assist her. She said that she could recall seeing Dr Wong in January, April and December 1980 and that she believed she saw him on other occasions in 1980 but she could not recall when or for what reasons. In fact Dr Wong's notes indicate that she saw him in relation to lower back pain on 23 June 1980, and, as has already been stated, the discography took place in April 1980. The applicant said that she also had physiotherapy in 1980. She acknowledged that she had not seen any doctor other than Dr Wong about her back in 1981, and his notes do not indicate any complaint to him of back pain in 1981 until 21 December of that year.

9. Evidence was given on behalf of the applicant by Mrs Sophia Robinson who said that she has known the applicant for 10 years. She was a telephonist with the respondent and she worked with the applicant. She said that since she had first worked with the applicant she had noticed her requiring to make adjustments to her chair and seeking permission to get up and move around from time to time. In cross-examination she said that she recalled two occasions when the applicant fell on the way to work, but she said that she could not recall when these occasions were. She said that the applicant required to get up and walk around for periods of 10 or 15 minutes or longer and would often have to lie down. She said that she recalls the applicant appearing to be in great pain in regard to her back. The witness said that she could not recall anything in regard to an injury being sustained by the applicant to her right leg in 1978.

10. Evidence was also given on behalf of the applicant by Mrs Pamela Kent. She said that she has known the applicant for 10 years as a neighbour and as a friend. In regard to the applicant's back she said:

'She complained repeatedly over the years about not being able to do her housework properly and gardening; not being able to walk for long distances or sit for long periods.'

In cross-examination the witness said that she recalled an occasion when the applicant fell on the way to the railway station because she herself was on the way to the station and she saw the applicant returning home. She said that the applicant was limping. She said that she could not recall any other occasions of falls that the applicant had told her about. She said that she did recall that the applicant had twisted her wrist when she grabbed a bannister to stop falling down some stairs, when the applicant was working at Ashfield.

11. Dr Robert Smith gave evidence on behalf of the applicant. He is an orthopaedic surgeon and he prepared a report on the applicant dated 29 July 1982 (Exhibit A). His report states inter alia:

'In my experience it is not uncommon for people to have extremely prolonged disability following a fall such as hers even in the presence of negative myelogram discogram and Cat Scan findings. It is also not uncommon for lumbo spondylosis to be aggravated by such an injury and the symptoms following this to be intermittent in nature.

I think it would be reasonable to regard her present continuing capacity (sic) as being aggravation of a pre existing, but symptoms free lumbar spondylosis. The rate of progress of which has been (ac)celerated by the fall described.

I think it is likely that she will have continuing intermittent incapacity and increasing back symptoms, and will require further periods off work and possibly more active treatment in the future.'

12. Dr Smith expressed the view in evidence that when a person falls on his bottom in the way that he understood the applicant to have fallen, there is a very high compressive force on the lower lumbar discs which produces damage and can accelerate degenerative changes which may be in process. He said that the fact that the applicant was off work for a short period after the accident was not a reliable factor with respect to the severity of the injury. He considered that what was significant was the fact that the applicant required to be off work. As to the importance of any intervening falls in the period from the first fall in 1972 to the time he saw her, Dr Smith said:

'My personal view, and it is not a widely shared view is that the initial injury is the most significant injury in the prolonged incapacity associated with this type of back and one is constantly confronted with people with multiple injuries and even no injuries with back pain, but when there is a history of no pain prior to an incident and a continuing, although varied incapacity following this, my personal view is that the original injury is the prime contributing factor.'

Dr Smith said that a number of his colleagues would disagree with this view, but that he did not necessarily believe that he was in a minority on the matter. He also said that falls 'do tend to precipitate symptoms and presumably lead to the hastening of degenerative changes'.

13. Dr Smith said that he knew or thought at the time he saw the applicant that she had not been seeking regular medical attention in respect of her back. He said that he considered this to be a relevant factor but added that 'this has to be taken in association with the type of person; how readily they seek medical attention and factors such as that'.

14. Dr Smith considered that the applicant continued to suffer from coccydynia which he described as 'most commonly a symptom of a lumbo sacral disc lesion rather than any local pathology'. He said that it involved a referred pain:

'It is referred pain and one of the traps is to have a patient who complains only of a coccyx and you can even be tempted to remove the coccyx, expecting to relieve the symptoms and a lot of patients I see have actually had a coccygectomy but their symptoms are further up and if I can just say in the last three years I have treated only people suffering from low back pain and during that time I have developed a particular interest in this type of injury because the people that I see are the people that have had this characteristic fall on the bottom and have not had _ it has not been a big deal at the time but subsequently manifested itself as a pain or problem and one is very conscious of this type of onset and presentation of a chronic low back syndrome with coccydynia and varying incapacities and symptoms.'

15. When asked if he thought that the applicant was fit for normal duties, Dr Smith said that he thought that the applicant would not be able to sit for long periods and that she should not stand for long periods. Nor, he said, should the applicant undertake heavy lifting or prolonged bending. He said that if the applicant was to work as a telephonist she would need to have breaks and stretch her legs.

16. Dr Richard Opie specializes in general surgery and was called on behalf of the respondent. He saw the applicant on 20 October 1982. In his report dated 22 October 1982 he stated inter alia:

'Of this woman's complaints and findings on physical examination I consider the only condition which could reasonably be attributed to her fall is her tender coccyx. Her other symptoms are due to degenerative disease as noted in her X-rays.

I do not consider any significant aggravation of these degenerative changes has occurred.'

In the result, Dr Opie considered that the applicant suffered from a mild post traumatic coccydynia that was related to her fall in 1972. He said that he did not think that subsequent falls would have materially altered the opinion that he had expressed in his report.

17. Dr Opie said that upon reading Dr Hammond's reports he could disagree with Dr Hammond only on his finding that there was no obvious cause for the applicant's pain. He said:

'It was my impression that this woman, having sat heavily on her backside and having persisting symptoms of painful coccyx, for that part of her pain there was an obvious cause for a continuing symptom.'

Dr Opie said that the applicant could work as a telephonist but 'she would require some breaks from the job'.

18. Dr Opie considered that apart from the symptoms produced by what he believed to be the applicant's coccydynia, her symptoms were due to degenerative disease whose presence was, he said, indicated by X-rays. He denied however that the 1972 accident could have aggravated the degenerative process to such an extent that the effects of that aggravation would not have now subsided. He said:

'... my contention is and I think it is reasonable, that she has enough in her back by way of degenerative disease to account for her symptoms rather than to postulate that these are the continuing effects of her fall.'

His basis for this opinion was that 'just about everybody in the community over 40 or 50 years of age is going to show some degree of degenerative disease in their back'. Nevertheless Dr Opie stated that he could not say that he had any evidence that there were degenerative changes in the applicant's spine prior to her accident in 1972.

19. Dr Hammond has already been referred to above. He was called on behalf of the respondent. He was consulted by the applicant on the two occasions in 1980 previously mentioned and thus saw her at that time as her treating doctor and not on behalf of the respondent. His findings are summarized in the report dated 21 April 1980 (Document T12). At that time he considered that the applicant was fit for work. He said that he had difficulty in understanding that the fall in 1972 could be the cause of her pain in 1980 when he saw her. Dr Hammond said that he had not been aware of any traumas having occurred to the applicant's back between 1972 and 1980. He said that he could not find any back condition in the applicant that had been exacerbated and that all he could find was a complaint of mild tenderness over the coccyx.

20. Dr Hammond had noted that the applicant complained of some pain in the back of her thighs. He said that it was unlikely that nerve root irritation, whether or not due to lumbar spine degeneration, would cause pain in both legs. He did not consider that the applicant had a disabling disc condition nor did he consider that the applicant suffered from spondylosis. He said that he 'could not substantiate the applicant's symptoms in relation to her physical and radiological findings....'. At the hearing Dr Hammond said that he 'had queries' as to whether the applicant's complaints were genuine, but it should be stated that in his report dated 21 April 1980 he said:

'I am satisfied the patient believes she has something more serious than my examination was able to reveal.'

Dr Hammond's opinion of the effects of the applicant's accident in 1972 is summarized in the following statement he made at the hearing:

'... I would have thought, if she was going to have symptoms, she would have had them pretty soon after a fall of that magnitude. My opinion would be had she any lasting pathology from such an accident it would be evident either as excessive wear and tear or abnormal movement, malalignment disc pathology with some supporting signs elsewhere. These I could not find....'

21. The case for the applicant is that she had a history of a major fall in 1972 followed down the years, on her own account, by back pain of increasing severity and that this history was corroborated by the evidence of Mrs Kent and Mrs Robinson so far as it concerned her difficulties in the work situation. It was said that Dr Hammond's evidence was to be rejected because it was postulated on a view that he found it impossible to explain the applicant's symptoms, a view not shared by Dr Opie, the other doctor called by the respondent. At any rate, Dr Hammond conceded that such a fall could aggravate symptoms while admittedly asserting that the interval of time between the fall and the development of pain in 1979 was too long for a conclusion to be arrived at that there had been any such aggravation. Dr Opie on the other hand had sought to assume from the applicant's age in 1972, and from her later history, that degenerative changes had preceded the fall and were of themselves an adequate explanation of the applicant's symptoms.

22. For the respondent reliance was placed upon the evidence of Dr Hammond and Dr Opie with strong emphasis upon the failure of the applicant to seek any medical attention at all in respect of her back condition between 1972 and 1979. Within that time she had sought medical attention for a number of other problems but had never mentioned her back complaint to any doctor. In that period she appeared to have had but one absence from work specifically related to her back, namely one day in December 1975, but a substantial number of absences related to other conditions. The respondent's case sought to emphasise, but I do not, the falls which occurred on the way to work and which are referred to above. I do not consider that there is anywhere near enough evidence to inculpate those falls in the way suggested. I should have been very concerned had the situation been otherwise, for the falls occurred on the way to work. To base an answer to the applicant's case on the occurrence of those falls and to then rely on the absence of a claim or claims in respect of such incidents might not readily be identified as an exercise of that regard for 'equity, good conscience and the substantial merits of the case without regard to technicalities' that is referred to in s.20(2)(a) of the Act.

23. In Ladic v Capital Territory Health Commission (Federal Court of Australia, as yet unreported, decision handed down 27 August 1982), Fox J said:

'The term 'onus of proof' (or 'burden of proof') has much of its application as an incident of the adversary system of litigation found in common law countries. This is not the occasion to examine its meaning and application in proceedings before the (Administrative Appeals) Tribunal. It was undoubtedly necessary for the Tribunal ... to be satisfied, on the facts, of certain matters. This was a legal burden, or requirement, and could, as a matter of common sense, be said to have rested with the party seeking the result.'

In Vulic v Capital Territory Health Commission (Federal Court of Australia, as yet unreported, decision handed down 26 March 1982) Morling J was concerned with an appeal from a decision of the Commonwealth Employees Compensation Tribunal and in his judgment he found that the statements made in Phillip v Commonwealth of Australia [1964] HCA 22; (1964) 110 CLR 347 at 350 as to the onus of proof on an appeal to the County Court of Victoria applied equally to an appeal to that Tribunal. Since then of course the avenue of judicial review has been closed, and the Administrative Appeals Tribunal has become the sole repository of appeals in this area. While there are times when, for instance, an applicant will fail to persuade the Tribunal because the relevant facts are peculiarly within the knowledge of that person but have not been adequately exposed to it, the Tribunal has, as appears from the decisions referred to and discussed in Butterworths Administrative Law Service (ed D.C. Pearce) in paragraph 232 of the Introduction thereto, consistently declined to take the view that the rules as to onus or burden of proof applicable in a judicial proceeding apply in a review before the Tribunal. Those rules are indeed part of the rules of evidence by which, as expressly stated in s.33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound. But more significant still are the fundamental differences between judicial and administrative review. The Tribunal is acting as an administrator reviewing an administrative decision, not as an adjudicator in a suit between parties. I would not in the circumstances care to regard the present applicant as having placed upon her an onus of proof any higher than that stated by Fox J in terms which I respectfully adopt. Such an onus is really no more than that 'as a matter of common sense', to use His Honour's words, he who asserts, or he who seeks a result, must prove. Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim.

24. The question thus becomes whether I can on the balance of probabilities, and having regard to the whole of the evidence, conclude that a relationship, whether of cause or of aggravation, existed between the fall and the subsequent back pains. The medical evidence called for the applicant is in these circumstances quite crucial. I have already set out Dr Smith's evidence but a re-reading of it, and of his written report, has convinced me that he is speaking in terms of possibilities rather than probabilities. He claims to have built up a body of experience in which he has identified an association between falls and back pain. No doubt also an association could be supported on the footing that a fall can aggravate symptoms of persisting degenerative change. None of this is really in dispute. But I reiterate that I see Dr Smith's evidence as hypothesis. Of course, if there were no other expert evidence, it might well be possible to conclude that, having regard both to his hypothesis and to the history given in evidence by the applicant, it would be unsafe to come to any conclusion, on the balance of probabilities, other than that the fall caused or aggravated a condition giving rise to pain. But that is not the case, for I have to take into account the evidence of Dr Hammond and Dr Opie. Their approaches were not entirely identical, but they both reject Dr Smith's hypothesis and I must reiterate that Dr Hammond originally saw the applicant as her treating doctor. When into this picture is painted the fact that the applicant sought no medical advice in relation to her back for seven years, and in that space of time sought no time off for her back save once in 1975, I feel compelled to the conclusion that I cannot, on the balance of probabilities, make the findings that are necessary to enable me to come to the conclusion that is requisite for the applicant to succeed. In so saying I am not rejecting the applicant as a witness of truth. I believe that she undoubtedly has, and has had, back pain and that in her own mind she attributes it to the fall. Such attribution would come easily to the lay mind, but on the evidence I do not consider that in the final result I can make the same attribution. While the medical evidence is certainly unsatisfactory, I am in fact inclined to the view that the applicant has been afflicted by a degenerative condition of the spine but that as a matter of probability the fall, which was certainly a heavy one and one which gave her substantial coccygeal pain, did not result in any pathology explaining in terms either of cause or aggravation the back pain which she has suffered since 1979 or 1978. On this basis the claim can not succeed.

25. I should add that it was not suggested that the applicant's work as a telephonist as such caused, or in particular aggravated, her back condition.

26. In the result the decision under review must be affirmed.