Martin v Australian Postal Corporation

The Tribunal decision 12 Section 14(1) of the Safety Rehabilitation and Compensation Act is as follows: "14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." The word "injury" is defined in s4 of the Act. It is not necessary for me to set out that definition. 13 At the rehearing of the matter before Senior Member Ettinger, there was some difference of opinion between Professor Murrell and Dr Brooks as to Mr Martin's work capacity. The Senior Member resolved the conflict by making findings that lie between the views of the medical experts but, both counsel concede, were open to her on the whole of the evidence. The Senior Member said in para 102: "102. I accepted from the evidence of Dr Brooks and Professor Murrell that Mr Martin is fit to engage in full time employment, providing that the following restrictions apply: · Not riding a motorcycle; · Driving up to two hours at a time; · Sorting to up to two hours at a time; · Two to four hours of 'plugging' at a time; · Lifting no more than 15 kilograms; · No repetitive above-the-shoulder work." 14 The Senior Member found "Mr Martin did not seriously seek employment". 15 Senior Member Ettinger then found total incapacity in relation to the period of hospitalisation and recuperation in 1997 and announced the Tribunal's decisions. The substantial decisions were as follows: "105. The Tribunal sets aside the decision of the Australian Postal Corporation dated 30 May 1996 which was affirmed by the Reconsideration Section of the Australian Postal Corporation dated 21 August 1996 to deny liability in respect of the Applicant's claim for compensation for his right shoulder injury. 106. In substitution therefor, the Tribunal finds that the Applicant was incapacitated for work due to a compensable injury for the period 23 June 1997 until 21 July 1997 whilst he was undergoing surgery and recuperation. The Tribunal remits the matter to the Respondent for calculation of the amount of compensation including medical expenses pursuant to section 16 of the SRC Act."

The applicant's submissions 16 Counsel for the applicant, Mr Ian Latham, argues the finding of the Senior Member concerning Mr Martin's fitness to work, as set out in para 102 of her reasons, amounted to a finding of partial incapacity. In support of that submission, he cites two cases. The first one is Ball v William Hunt & Sons Limited [1912] AC 496. The appellant in that case had sustained an injury that caused him to lose the sight of his left eye. His eye was not removed. The appellant continued to work at his old trade, without loss of income, for a further 12 years until he suffered a second injury which necessitated removal of the eye. After removal of the eye, the appellant was as capable of working at his trade as before. However, he was now manifestly one-eyed and found it impossible to obtain employment. 17 The House of Lords unanimously held that, on those findings of fact, the appellant was entitled to compensation. At 499 Lord Loreburn LC remarked: "The injury did not prevent him from being able to work, but it did reduce him to a physical condition which prevented him from getting work suitable in the circumstances." He went on at 499-500: "I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch." 18 At 500 Lord Macnaghten described the phrase "incapacity for work", used in the relevant United Kingdom statute, as "a compendious expression meaning inability to earn wages or full wages as the case may be at the work in which the injured workman was employed at the time of the accident." 19 The second case mentioned by Mr Latham is Arnotts Snack Products Proprietary Limited v Yacob (1985) 155 CLR 171. The respondent in that case was a clerical worker whose work involved climbing and lifting. He fell from a chair and injured his back. As a result, he could not climb or lift. His job was allocated to another employee. The respondent sought alternative work from his employer and prospective employers but was offered none. He sought compensation on the basis of total incapacity but the claim was rejected by the Workers Compensation Commission of New South Wales, the judge finding the respondent was still capable of performing clerical work and, therefore, had not suffered an impaired ability to earn. The New South Wales Court of Appeal allowed an appeal from that decision and the matter was returned to the Commission. The Commission made an award in favour of the respondent on the basis of total incapacity and the Court of Appeal affirmed that award. By majority (Mason, Wilson, Deane and Dawson JJ, Brennan J dissenting) the High Court dismissed an appeal against the Court of Appeal's order disposing of the second appeal. 20 At 176-177 the majority referred to authority for the proposition that "incapacity for work" is not limited to incapacity for work in the employment or industry in which the injury arose. They approved a statement by Starke J in Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 at 444: "The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity in the future is less than it was before the injury." After referring to a comment by Dixon J in the same case, the majority said: "Central to these statements especially that of Dixon J. is the view that incapacity for work denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work, though this incapacity may not necessarily attract compensation under s.11(1) because it results in no loss of earning power." 21 The dissentient, Brennan J, would have returned the case to the Commission; he thought there was an unresolved question of fact. But his Honour did not disagree with the principles propounded by the majority. He thought the test applied by Lord Macnaghten in Ball was too narrow. At 183 he said: "Regard must be had not only to the employment in which the injured worker was employed before his injury but also to other fields of employment in which he was accustomed to work or in which he might have been expected to seek and find work in the course of his working life." 22 Basing himself on these authorities, Mr Latham submits that Senior Member Ettinger erred in law in failing to consider and determine the question whether Mr Martin was incapacitated from doing work in the labour market in which he had been working, at Australia Post, or might reasonably be expected to work. Alternatively, counsel says, if the Senior Member did consider this matter, she erred in law in failing to state her conclusion about it and the reasons underlying those conclusions.

The respondent's submissions 23 Mr Geoffrey Johnson, counsel for Australia Post, refers to s19 of the Safety Rehabilitation and Compensation Act. It is common ground that, if Mr Martin is entitled to compensation for injury resulting in incapacity, that entitlement must flow from this section. Mr Johnson points out that s19(2) confines compensation to the difference between the amount of the employee's normal weekly earnings and "the amount per week (if any) that the employee is able to earn in suitable employment". He says it follows that incapacity for work, let alone incapacity sounding in compensation, does not necessarily result from an injury or impairment. 24 In his written submissions, Mr Johnson said: "The adequacy of what was said by the Tribunal is plainly affected by what was [sic] called upon to decide and that it in turn could be shaped or affected by the submissions made to the Tribunal. The applicant had resigned from employment within his restrictions and the Tribunal was plainly satisfied that he could (save for the period specified in the remittal to the respondent) do that work. Accordingly, the respondent invited the Tribunal to find that, save for the period of surgery and recuperation, any incapacity was notional and not such as would diminish the applicant's ability to earn so as to sound in compensation. The Tribunal's reasons …show that it accepted those submissions and resolved the matter accordingly." 25 In oral argument, Mr Johnson said Mr Martin failed because he did not satisfy the Tribunal that he could not obtain employment that complied with the restrictions listed by the Tribunal. 26 Mr Johnson contends the Tribunal's reasons should "be read beneficially" and cites Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1995) 185 CLR 219 at 271-272 and Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. He argues there is here no error of law; alternatively, any error of law was not such as could have affected the decision of the Tribunal. 27 Following the hearing, Mr Johnson supplemented his argument with a note drawing attention to two other cases: A v Minister for Immigration and Multicultural Affairs [1999] FCA 116; 53 ALD 545 and Commonwealth of Australia v Borg (1991), reported as an appendage to Telstra Corporation v Arden (1994) 20 AAR 285. He contended these two cases illustrate that findings or reasons, under a provision like s43 of the Administrative Appeals Tribunal Act, may be implied. 28 A was a refugee case. The issue before the Refugee Review Tribunal was whether Acould relocate in a particular country. This was not her country of nationality but A was entitled to live there. The Tribunal held it was not reasonable for her to relocate there because of likely violence from her estranged husband. The Tribunal did not explicitly find that A would face persecution in that country for a reason covered by the Convention on Refugees. The question for the Full Court was whether the primary judge erred in holding that the Tribunal had failed to make a finding on the question whether, in that country, Afaced a risk of persecution for a reason covered by the Convention on Refugees. The Full Court held the judge had erred, saying at para 54: "Reading the reasons as a totality, the factual conclusion that it cannot provide the requisite level of protection is implicit in them. It does not require explicit formulation." 29 I need not set out the facts of Borg. It is enough to say that, also, was a case in which a Full Court held that a Tribunal's conclusions on a particular matter, although not stated in express terms, could be inferred from the whole content of its reasons for decision: see per Jenkinson J at 309.

Submissions in reply 30 In response to Mr Johnson, Mr Latham submitted this is not a case where it is possible to infer from the totality of her reasons that the Senior Member addressed the issue of loss of earning capacity and decided that issue adversely to Mr Martin. He says it "is not clear whether the Tribunal Member identified the question and dealt with it but failed to express her reasoning, identified the question and failed to deal with it or failed to identify the issue at all." 31 Mr Latham also responds to Mr Johnson's submission that the Tribunal was entitled not to deal with the issue of loss of earning capacity because Mr Martin had failed to adduce evidence about that matter. Mr Latham says this is an onus of proof argument and inappropriate when applied to the Tribunal. Mr Latham cites McDonald v Director-General of Social Security (1984) 1 FCR 354. He argues this is not a situation, like that described by Woodward J in McDonald at 358, where the facts are peculiarly within the knowledge of one party, so that "a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn." 32 In response to Mr Johnson's observation that Mr Martin "had resigned from employment within his restrictions", Mr Latham makes the point that these resignations, from Australia Post and Panasonic, occurred before Mr Martin experienced the arthritic pain which has since constituted his major disability.

Conclusions 33 I accept that a factual finding by an administrative tribunal may be implicit in its reasons for decision. Even though a particular finding is not set out in express terms, it is sometimes possible to infer from the totality of the reasons that the tribunal has formed a particular factual view. I also accept that a tribunal's reasons ought not be scrutinised in an over-zealous way, with an eye to discerning inadequacies in their expression: see Wu Shan Liang at 272. 34 However, having said those things, there is a serious problem about the reasons offered by the Tribunal in the present case. As I have mentioned, there were differences in the views of the two orthopaedic experts who gave evidence about Mr Martin's fitness for work. For reasons which she gave, the Senior Member distilled from their evidence a statement about Mr Martin's present fitness for work. She expressed this by saying that Mr Martin was fit to engage in full time employment provided that certain restrictions apply. Having regard to the terms of s19 of the Act, it was then necessary for the Senior Member to consider, and determine, whether full time work that observed those restrictions had been, and now was, available to Mr Martin. If such work had been available to Mr Martin at any time during the period for which he sought compensation, the income attached to that position would have been "the amount per week … [Mr Martin] is able to earn in suitable employment": see s19(2) and (3) of the Act. That is so whether or not Mr Martin would have been prepared to accept that work. 35 On the other hand, of course, if no such work was available during the relevant period, then the amount per week that Mr Martin was able to earn in that employment would have been nil and compensation would be calculated accordingly. 36 As the period of claimed incapacity extended beyond 45 weeks, it seems both s19(2) and s19(3) of the Act would be relevant to calculation of any compensation to which Mr Martin was entitled. Under s19(2), which applies to the first 45 weeks of incapacity, compensation is the amount by which the amount the employee is able to earn falls short of the employee's normal weekly earnings, calculated in accordance with s8 of the Act. Under s19(3), which applies to the balance of the period, the available compensation (in the case of a person not employed at all) is the difference between 75% of the employee's normal weekly earnings and the amount he or she was able to earn in suitable employment. Other percentages apply to part time work. 37 Subsection (4) of s19 sets out matters which Comcare (and so the Tribunal) must consider in determining what amount per week an employee is able to earn in suitable employment. So far as her reasons reveal, the Senior Member did not consider any of these matters in the present case. 38 This is not a case, in my opinion, in which it can be said that the Tribunal addressed the relevant evidence but was not satisfied of the facts necessary to be established before the claim could succeed. Not only do the reasons contain no indication that the Senior Member addressed the relevant issue, they include the observation that "Mr Martin did not seriously seek employment". It is difficult to see the relevance of this observation, except on the basis that the Senior Member thought this relieved her from considering what income Mr Martin was able to earn. That was the true issue, having regard to the terms of s19(2) and (3) of the Act. 39 It seems the Senior Member had little material with which to determine the availability to Mr Martin of work complying with the restrictions she listed. However, that did not excuse her from dealing with the question. Having reached the conclusion set out in para 102, the Senior Member could, and should, have called on the parties to provide information about the matter. 40 It is inappropriate for the Administrative Appeals Tribunal to determine a matter by reference to the onus of proof: see McDonald at 358 (Woodward J), 366 (Northrop) and 369 (Jenkinson J). As Woodward J pointed out in that case (at 358), the Tribunal "must act on the material which is before it but … is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate." As Mr Latham submits, this is not a case where the relevant facts were peculiarly within the knowledge of one party to the proceeding. While it might be expected that Mr Martin would be able to offer evidence concerning the availability to him of work having the restrictions listed by the Tribunal, Australia Post is a major employer. It must have had considerable experience in rehabilitating injured employees and finding positions compatible with their working limitations. If Senior Member Ettinger had posed for herself the appropriate question, it would have been reasonable for her to expect assistance from both parties in relation to its resolution. In particular, if Australia Post had wished to contend that one or more positions compatible with Mr Martin's restrictions is reasonably available to him, the best way of making good the contention would have been to identify the position. 41 It is regrettable that the matter has to be returned to the Tribunal yet again; this time for a third hearing. However, having discussed the matter with counsel during the course of submissions, I am of the opinion that, in this particular case, it is not necessary that the rehearing be conducted by a different Tribunal member. This is not a case where the reason for remittal is behaviour by a Tribunal member that might reasonably cause an applicant to lack confidence in that member's impartiality. This is simply a case where, through an error of law, the member did not finish the job. I see no reason to doubt that she is capable of doing this in an impartial and satisfactory way. Accordingly, subject to Senior Member Ettinger's availability to deal with the matter within the near future, I would favour the rehearing being conducted by her. This would avoid the inconvenience and expense of recalling the medical witnesses. As I am unaware of Senior Member Ettinger's availability, I make no direction about this matter. I prefer the final decision, as to who is to conduct the rehearing, to be that of the President of the Tribunal. 42 I propose to order that the second paragraph of the Tribunal's formal order be set aside and that the matter be remitted to the Tribunal for further hearing, with such additional evidence as may be provided or required, and determination according to law. Australia Post must pay Mr Martin's costs of this proceeding. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate: Dated: 17 November 2000 Counsel for the Applicant: I Latham

Solicitor for the Applicant: Fishburn Watson O'Brien

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 30 October 2000 and 6 November 2000