33 The expert medical evidence was all to the effect that, by 1996, the condition of his shoulder was such that he had a permanent impairment, viz, a 10 percent loss of function of his right upper arm and a consequent 10 percent loss of bodily function, and that his 1971 injury had made his shoulder more susceptible to subsequent injury of the kind he suffered between 1972 and 1996. The Tribunal understandably accepted all this evidence. It is the basis upon which it made its first order as to Comcare being liable for this impairment.
34 The second order the Tribunal made limits the extent of that liability; it was to the effect that, notwithstanding that the post-1994 impairment of Mr McAuliffe's shoulder was sufficiently linked to the 1971 injury to make Comcare liable for that impairment, Comcare is nevertheless not liable for ongoing workers' compensation in respect of periodic payments under s 19, household assistance under s 29 and costs of medical treatment under s 16.
35 By its determination of 23 October 1996, Comcare's delegate appears to have made a final determination under s 24 in respect of Mr McAuliffe's 10 percent permanent shoulder impairment. He received the amount determined as payable in respect of that impairment and there is no suggestion that that particular determination did not include a component for non-economic loss pursuant to s 27 or that it was only an interim payment under s 25. The Tribunal by its orders did not disturb this determination by Comcare. In accepting that Mr McAuliffe was entitled to compensation under s 24 in respect of this impairment, the Tribunal noted "he has been adequately compensated for that", ie, by the lump sum payment.
36 By its second order, the Tribunal disposed of the main issues litigated before it. The Tribunal gave two separate reasons for rejecting, by this order, the claims by Mr McAuliffe for ongoing compensation.
37 Firstly, in par 13, it found that "[t]he 1994 incident was of such severity that it was a new incident which caused the damage about which the applicant now claims, along with the other non-Army related matters mentioned above". It also here specifically found that "the 1994 incident and the subsequent injury to Mr. McAuliffe's right shoulder were not related to his work in the Australian Army". That is, the Tribunal here found that the 1994 incident was not causally related to the 1971 injury and that it, with his psychological problems and alcohol related problems referred to in par 11, was the cause of his claimed total incapacity for work.
38 Its reasoning here is flawed with error of law. The Tribunal could not make the unqualified finding that the 1994 incident and the injury Mr McAuliffe then suffered to his shoulder was not related to his Army employment: that is inconsistent with the findings set out in par 15 of its reasons and incorporated in its first order that, by 1996, he had a 10 percent permanent impairment for which Comcare was liable because, though that was the end result of a number of injuries including the 1994 incident and a number of other matters, that impairment was causally related to and thus the "result" of the 1971 work injury.
39 The Tribunal must therefore have made an error of law in finding that the injury Mr McAuliffe suffered in 1994 was not related to his Army service. That error may be found in its failure to take into account the mass of evidence already referred to, and the conclusion it itself reached on that evidence that is incorporated in the Tribunal's first order, that the 1994 injury, though a cause of the 10 percent permanent impairment, was not a sufficiently new incident to break the causal link between the work-related 1971 injury and his residual post-1994 permanent impairment. But it is sufficient to hold that by failing to explain its reasons for concluding that the 1994 injury was not related to Mr McAuliffe's army service amounts, in the circumstances of this case, to an error of law constituted by breach by the Tribunal of its duties under ss 43(2), (2A) and (2B) the AAT Act. The Tribunal's reasons contain no explanation capable of enabling Mr McAuliffe to understand why the Tribunal made order 2 on this particular basis. Cf Dornan v Riordan (1990) 24 FCR 564 at 567 - 568 and Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 at 444.
40 This error is a material one. It infects the first ground on which the Tribunal based its decision in its second order to reject Mr McAuliffe's claim for ongoing compensation. Prima facieMr McAuliffe is entitled to have the case sent back to the Tribunal for redetermination on the question of whether he has an ongoing entitlement to compensation. But before that can be said to be the proper outcome of this appeal, the Court must consider whether the Tribunal's second order can be supported by the other, separate basis for that order that the Tribunal identified.
41 In par 14, the Tribunal identified a separate basis for rejecting Mr McAuliffe's claim for ongoing compensation. It appears here to have assumed, contrary to its conclusion in par 13, that his permanent impairment of 10 percent was linked to the 1971 injury, but was of such a minor level that his psychological and alcohol problems were of themselves sufficient to explain why he was not working. It had, in par 11, made brief findings that he had "psychological problems", not identified other than by the comment that he had been treated for them "from the early 1990s" and "an alcohol abuse problem for about 25 years". It also took into account, in arriving at this conclusion, Mr McAuliffe's capacity to engage in full-time employment for the twenty-two years following the 1971 fall until the 1994 fall (pars 4 and 10), that it was only following his 1994 fall that Mr McAuliffe contended that he was in such pain as prevented him from working thereafter (pars 6 and 8), and that the 1994 fall involved more serious injury than Mr McAuliffe suggested at the trial (par 12).
42 But I do not think the Tribunal has here complied with its duties under ss 43(2), (2A) and (2B) the AAT Act to explain how it came to its second basis for rejecting the claim for total incapacity for work. In par 11, the Tribunal noted that Mr McAuliffe has had ongoing psychological problems that commenced from years before the 1994 incident that "complicate" the question of his incapacity for work. It also noted that he has an ongoing alcohol abuse problem that commenced in about 1976 and said that "[t]his no doubt plays a part in his inability to work". In par 14, the Tribunal concluded that both problems "play a very significant part in his current unemployed situation" and that his 10 percent impairment, though here accepted to be related to the 1971 work-caused injury, was not the reason for that situation. To say no more than the Tribunal has in pars 11 and 14 does not, without any explanatory reason at all, provide any justification for the conclusion it reached in par 14 and incorporated in its second order.
43 This is I think clear when it is recalled that the Tribunal found in pars 4 and 10 that for over twenty years between leaving the Army and suffering the 1994 injury, he was continuously in a series of private employments and occupations. The Tribunal does not provide any explanation at all why it considered that Mr McAuliffe's longstanding alcohol abuse problem that had not affected to any significant degree his working capacity during the years from 1972 to 1994 should nevertheless by 1996 have become a "very significant" cause of his then current unemployment. Nor does the Tribunal offer any reasons for its finding that the psychological problems, also present for years before the 1994 injury but which had not affected his work capacity, nevertheless by 1996 had a "very significant" impact on that capacity.
44 There was a lot of evidence, from experts as well as from Mr McAuliffe himself, about these psychological and alcohol problems. It is summarised in par 22 of the appellant's Outline of Submissions filed on 9 May 2002. This body of evidence does not all point unequivocally to a clear explanation why these problems could have prevented Mr McAuliffe working after 1994, though they did not prevent him working before 1994. The Tribunal could not reject Mr McAuliffe's claim for ongoing workers' compensation on the second basis for decision it referred to in par 14 without evaluating the conflicts in this body of evidence and explaining why there was to be found in this evidence a foundation for its second basis for decision. In view of the Tribunal's findings in pars 4, 10 and 12 about his ability to work before 1994, it is by no means certain that the Tribunal would, if it had given the necessary consideration to these questions, have arrived at its conclusion in par 14. Perhaps that may nevertheless be the correct conclusion. But, in the absence of informative reasons showing why that may be so, the Tribunal's second order, in so far as it is supported by the second basis, cannot stand.
45 Because of the Tribunal's failure to comply with its duties under ss 42(2), (2A) and (2B), its second order must be set aside, at least in so far as it denies Mr McAuliffe ongoing compensation for all detriments other than costs of medical treatment.
46 Mr McAuliffe's entitlement to payment of the costs of medical treatment in relation to his 1971 injury is provided for by ss 124, 14 and 16 of the 1988 Act: s 16(2) makes it clear that it is enough that Mr McAuliffe obtained medical treatment "in relation to" the 1971 injury in 1996 (and subsequently) and that it is not necessary for him also to show, in order to be entitled to the costs of that treatment, that the 1971 injury "resulted" in incapacity for work or impairment of bodily function.
47 His claim to treatment costs thus raised different matters for consideration from those raised by his claim in respect of total incapacity for work. Rejection of the latter, governed by ss 14, 19 and 24 of the 1988 Act does not necessarily mean that his claim for ongoing treatment costs for his shoulder injury under s 16 must fail. This is especially so since by its first order the Tribunal accepted that there was a causal link between the 1971 injury and his post-1994 10 percent shoulder impairment. The question whether, if Mr McAuliffe were to obtain treatment for his post-1994 shoulder condition, that treatment would be "in relation to" his work-caused injury was a live one. Yet the Tribunal dismissed this particular claim without giving any reasons at all. Counsel for Comcare did not dispute the lack of reasons, but he submitted that this issue was not discussed at the hearing before the Tribunal. Mr McAuliffe, who represented himself before the Tribunal, may not have specifically raised this aspect of the delegate's decision. But it was not suggested he should be taken to have abandoned his challenge to the denial of ongoing medical treatment.
48 Mr McAuliffe was specifically denied any further entitlement to such treatment costs by the delegate's decision of 21 July 1999, affirmed on reconsideration. It was an issue for the Tribunal's own determination raised by Mr McAuliffe's appeal to it. The Tribunal by its second order determined this issue against Mr McAuliffe.
49 The Tribunal's second order in so far as it affirms the delegate's decision that Mr McAuliffe is not entitled to any further costs of treatment for his shoulder impairment cannot stand. For the reasons given, the second order of the Tribunal, in its entirety, must be set aside.