Norton v Comcare

[2000] FCA 1068

Federal Court of Australia|2000-08-04|Before: Drummond J

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Court

Federal Court of Australia

Decision date

2000-08-04

Before

Drummond J

Source

Original judgment source is linked above.

Judgment (433 paragraphs)

[1]

1 This is an appeal from a decision of the Administrative Appeals Tribunal dismissing the applicant's claim and affirming the decision of 15 April 1996 of a reconsiderations delegate of the respondent, which had affirmed a decision of a delegate dated 29 January 1995 that deemed the applicant able to earn full income in suitable employment, a finding that disentitled him to receive weekly payments of compensation under s 19 the Safety Rehabilitation and Compensation Act 1988 (Cth). 2 The evidence before the Tribunal showed that the applicant suffered a back injury on 1 November 1976 while working as an airport trainer in the Department of Transport fire fighting service. On 11 August 1977, a delegate of the Commissioner for Employees' Compensation determined that he was entitled to payment of compensation for the days he was off work following his injury, on the ground that he had sustained personal injury, viz, acute muscle strain of back, arising out of or in the course of his employment. The applicant made a further claim for compensation following a short period off work after he had again injured his back, this time at home, in late October 1977. A delegate of the Commissioner for Employees' Compensation on 12 December 1978 determined that he was entitled to payment of compensation for the ensuing period of absence from work in respect of aggravation of acute muscle strain of the back. He made a third claim for compensation in respect of another short period he was off work following a further injury to his back for which he lodged an application for compensation on 10 February 1981. Although the relevant papers are not in the appeal book, the Tribunal noted in its decision that liability was accepted to pay compensation to the applicant in respect of this further claim. 3 As the Tribunal noted in its reasons, the applicant accepted an offer of voluntary redundancy in 1991, ceasing work on 12 November 1991. In October 1993, however, he lodged a further claim for compensation for "lower back pain caused by disc lesions and spondylolisthesis". He claimed he had a 30% impairment of the back and a further 10% impairment of both legs as a result of his back injury. A determination was apparently made by one of the respondent's officers in respect of this claim on 6 February 1995 adverse to the applicant. On reconsideration, however, another of the respondent's officers on 16 February 1995 ruled partly in his favour. The reconsideration decision was as follows:

[7]

6 The applicant did not contend that Comcare was prevented by any of its four earlier decisions in his favour from pursuing the first issue. The Tribunal found against him on both issues. 7 The first medical practitioners who saw the applicant after the injury of November 1976 were his general practitioner who diagnosed him on 12 November 1976 as having suffered muscle spasm, but who considered he was then virtually pain free, and the Commonwealth Medical Officer, Dr Stewart, who saw him in July 1977 in connection with his initial claim for compensation, and who reported that on that occasion there was then no evidence of any back disability. Neither of these doctors appears to have called for any x-ray examination. 8 The applicant has been examined by a number of specialists between 1981 and 1997, some on referral from his general practitioner, others at the request of his solicitors or Comcare's solicitors in connection with this litigation. All the specialists had access to x-ray reports and they all acknowledged that he had pathology in the form of extensive degeneration of the L4/5 disc that antedated his 1976 injury. The specialist who saw him on a number of occasions between 1981 and 1983 at the request of his general practitioner considered that this degeneration progressed significantly during this period, and ultimately recommended spinal fusion which the applicant, however, did not undergo. Four of these practitioners, Drs Seaton, Coffey, Tuffley and Hazelton, gave oral evidence before the Tribunal as well as providing their reports. 9 Drs Seaton and Coffey, who examined the applicant at the request of his solicitors, each gave reports and evidence supportive of his claim to significant permanent back impairment as a result of the 1976 injury. Both spoke of, among other things, the degenerative disc condition at the L4/5 level. Dr Tuffley also examined the applicant at the request of his solicitors. He was less supportive of the applicant's claim than Drs Seaton and Coffey, though he considered that the episode in November 1976 represented a significant aggravation of a pre-existing, age-related degenerative change within the L4/5 disc. 10 Dr Hazelton gave an unequivocal opinion in his reports that while Mr Norton first reported symptoms in late 1976, he clearly had advanced degenerative disease of the lumbar spine at that time, and that the only significance of the episode in November 1976 was that it "may have temporarily aggravated his symptoms". He said "his subsequent reporting of symptoms is clearly the natural progression of his severely degenerative lower lumbar spine". He did not resile from this in cross-examination. 11 In its reasons the Tribunal acknowledged the conflict in the medical testimony and identified the applicant's credibility as the issue that was critical both to its assessment of the applicant's evidence, and to resolving the conflict in the medical evidence. 12 In the second paragraph numbered 15 in its reasons, the Tribunal recorded its assessment of Mr Norton saying:

[16]

18 But a decision involving only factual evaluations may still be flawed for reviewable error of law. In Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, it was said at 12 that, though a decision be on matters of fact, the decision will be flawed for error of law and thus reviewable if the decision-maker, in determining the facts, has failed to have regard to relevant considerations or has had regard to irrelevant considerations or if the decision may have been so unreasonable that no reasonable decision-maker could have come to it. 19 The scope and even the availability of Wednesbury unreasonableness as a ground of review of administrative action at common law are the subject of dicta, but no ratio binding on this Court, in Abebe v Commonwealth (1999) 162 ALR 1 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 322 - 323, 327 and 331 - 332 stands as authority that unreasonableness is a ground upon which an administrative decision can be reviewed by the Court, as is Sharp. Gibbs J, in Pestell at 327, treated it as a residual ground, only available where no other invalidating error of law can be identified in the administrative decision, but as a ground independent of the more common errors of law such as taking into account irrelevant considerations and breach of natural justice. 20 In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, Mason CJ and Deane J considered that the Wednesbury formulation of unreasonableness contained in s 5(2)(g) the Administrative Decisions (Judicial Review) Act 1977 (Cth) extended to the case of a decision-maker who "makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course". This suggests that when a question of Wednesbury unreasonableness arises, it is not just the ultimate decision that can be examined for that particular flaw: attention can properly be focused also on the reasons given by the decision-maker for arriving at its decision. And if those reasons can be said to show that the decision has been reached in a manner devoid of plausible justification, it will be reviewable for Wednesbury unreasonableness, even though the material available to the decision-maker was such that the ultimate decision could have been justified on a basis different from that adopted by the decision-maker. 21 In order to deal with the claim of Wednesbury unreasonableness, it is first necessary to consider, in a little more detail, how the Tribunal reached its decision. The authorities also emphasise the need, in doing that, to avoid over-zealous scrutiny of the Tribunal's reasons in a search for error. 22 After setting out its views about the applicant's credibility in par 15, the Tribunal turned to see whether there was more acceptable testimony to corroborate the applicant's evidence, but found there was none. 23 One of the witnesses called by the applicant was a former fellow worker, Mr Rispoli. Mr Rispoli knew Mr Norton for over 30 years, but apparently only worked with him for the last seven. Of his evidence the Tribunal said, at par 17:

[36]

35 Although Mr Butcher's evidence was that in the last two years of their acquaintanceship on the intermittent occasions they met at meetings in Canberra, he did not see any signs of Mr Norton having a back problem, the Tribunal misstated his evidence in a number of respects, all adverse to Mr Norton. Mr Butcher did not give evidence "that he had known the applicant since 1968, that the applicant always kept in trim". Mr Butcher did not say that "if he had not been told more recently of the back injury the applicant suffered in Melbourne, he would never have known that the applicant had suffered an injury". Nor did he say that "over the years" he had never seen any sign of the applicant having a back problem: he only said that was the position in the last two years during which they met intermittently in Canberra. Counsel for Comcare did not attempt to defend how the Tribunal dealt with Mr Butcher's evidence, acknowledging that it plainly misunderstood it. 36 The Tribunal, at par 19, said of Mr Pitcher that he "has known the applicant since 1968/69", that he said that Mr Norton was always extremely fit and "in his frequent dealings with the applicant never saw any effects of a bad back, nor any sign of the applicant having back problems". As the Tribunal observed, Mr Pitcher said the job of Assistant General Manager was not physically demanding. Mr Pitcher's evidence was that he first met Mr Norton in 1968 or 1969, when Mr Norton was a supervisor and he was a fire fighter at Sydney. He said he came across him again over the years, that they ended up both as Assistant General Managers, he for the Victorian/Tasmanian region and Mr Norton for the New South Wales region. He remembered hearing that Mr Norton had hurt his back at a training school, and that during the period they were both Assistant General Managers (the position from which they both retired), they met at about three monthly intervals in Canberra. There is no suggestion that the Tribunal misstated his evidence in any material respect. 37 The Tribunal dealt with Mrs Norton's evidence in this way in par 18:

[56]

42 This was the only opportunity Mrs Stephenson was given to address the applicant's movements which were demonstrated on the film. The Tribunal found the videos particularly compelling evidence in contrast to the impact they had on the occupational therapist and indeed on senior counsel who appeared for Comcare at the hearing before the Tribunal and in this Court: counsel's cross-examination of the applicant on the videos elicited the comment from the Tribunal as to its surprising brevity set out above. But it can be questioned whether the way the therapist responded to cross-examination on the videos as recorded in the transcript justifies dismissing the whole of her evidence because of what the Tribunal described as her failure to address the applicant's movements demonstrated on the film. 43 The Tribunal then considered the conflicting medical evidence, expressly accepted the evidence of Drs Hazelton and Tuffley, and said it preferred their evidence and opinions wherever they conflicted with the evidence and opinions of the other medical witnesses. 44 Dr Tuffley examined Mr Norton at the request of the latter's solicitors in August 1996 and again in January 1997. He considered that the work incident of November 1976 represented "a significant aggravation of pre-existing age related degenerative change within the L4/5 disc" and that further episodes of pain which occurred (in 1977 and 1978 and 1981) while he was working at the Darwin airport represent further, more minor, aggravation of his pre-existing degenerative disc disease. He reported that there "did appear to be an element of symptom promotion" and that while Mr Norton "expresses a considerable disability, perhaps in the order of 30%", only 15%, in Dr Tuffley's opinion, related to physical impairment, the balance relating to "the subjective factors mentioned above". Dr Tuffley considered that his condition had stabilised by 1996 with no further deterioration likely because of the spontaneous fusion that had occurred between the relevant vertebrae. He also said that he thought Mr Norton would have been able to continue working as Assistant General Manager with Air Services Australia, though he would have had to receive ongoing treatment for his back and may, on several occasions in the course of a year, have had to take up to a week or two off work for episodes of acute lumbar back spasm. 45 Once again the Tribunal, in a significant respect, misstated the evidence. After summarising Dr Tuffley's report in par 32, it turned to his oral evidence. Of this the Tribunal said:

[63]

48 But that is as far as Dr Tuffley went. He did not resile from the opinion he expressed in his written report set out above. In particular, he did not change his evidence, as the Tribunal wrongly found, to saying that he "considered it more likely in these circumstances, that the injury on 1 November 1976 was a muscle strain". Once again, the Tribunal misapprehended the evidence in a way adverse to Mr Norton. 49 This is a particularly important mistake by the Tribunal. I have already referred to what the Tribunal said of Dr Hazelton's evidence, viz, "that the applicant's back complaint is due wholly to his intrinsic degenerative spine disease, and unrelated to the 1976 incident". There was a clear conflict between Dr Hazelton and Dr Tuffley, the one being of the view that the back injury in November 1976 was a temporary episode only and that Mr Norton's subsequent back problems were all due to the natural progression of his pre-existing degenerative disease, while the other, Dr Tuffley, remained of the view that the injury in 1976 had significantly aggravated his pre-existing condition and was responsible for 10% of the 15% physical impairment of the back which he considered the applicant had when he saw him in 1996 and 1997. The Tribunal, by misstating in its reasons Dr Tuffley's response to what the Commonwealth Medical Officer had to say in 1977 and what Mr Norton's general practitioner had to say in mid November 1976, mistakenly thought it could accept both Dr Hazelton and Dr Tuffley's evidence and could prefer their evidence where it conflicted with the other medical evidence more supportive of Mr Norton's case. In fact, there was an irreconcilable conflict between the evidence of Dr Tuffley and Dr Hazelton which the Tribunal failed to identify because it misunderstood Dr Tuffley's evidence. 50 There is ample material before the Tribunal to justify it in reaching the conclusion it did on both issues identified by counsel for its determination and referred to above. But there was also a body of other evidence sufficient to show that that is not the only conclusion that was open to the Tribunal on the issue of whether the applicant continued in the 1990s to suffer from the effects of his back injury in 1976. 51 In my opinion, more than simple errors of fact were made by the Tribunal. Though this case is, I think, near the borderline of unreasonableness, the Tribunal has made so many errors of fact, each significant, though to differing degrees, in reasoning to its decision that it can be said to have made that decision "in a manner so devoid of plausible justification" that it is flawed for Wednesbury unreasonableness. If it had not misstated the evidence of Messrs Rispoli and Butcher and Mrs Norton, and especially Dr Tuffley, it could not have come to the conclusion it did by the path it followed. 52 For these reasons, the decision under appeal will be set aside and the matter remitted to the Tribunal, differently constituted, for redetermination, with liberty to receive further evidence. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

[90]

A negative finding will bar a worker from taking any claim at common law. Therefore an analogy should be drawn between a refusing of a section 132A application and allowing summary judgement for the defendant in a common-law proceeding. That is if the Regulator is satisfied there is a serious question be tried about an injury being suffered, it ought not be satisfied the injury had not been suffered.
Alternatively, if the submission made in the previous paragraph is not accepted or not accepted completely a flexible standard of proof should be applied. If this test is applied the only way it could be shown injury had not been suffered would be to show that the worker was acting fraudulently in claiming the injury was suffered, then the evidence to show fraud accordingly would need to be persuasive of the existence of fraud.
The Industrial Relations Act at chapter 9 section 348 provides an appeal to the QIRC is an appeal by way of a rehearing on the record but by subsection (2) the QIRC may hear evidence afresh or hear additional evidence if it is considered appropriate to effectively dispose of the appeal. In this appeal before the QIRC the usual approach was undertaken and oral evidence was adduced.
In Minister for Immigration and Multicultural Affairs v Eshetu Gummow J analysed the principles relevant to reviews of decisions that required the decision-maker to be "satisfied". At [143] it was noted the High Court had warned "against drawing too closely upon analogies in the conduct of determination of civil litigation" in the field of judicial review of the type of decisions under consideration in that case. It is submitted that warning may not apply here because the proceeding before the QIRC was not an inquisitive or administrative procedure but rather the appeal was conducted in the way civil litigation is conducted.
It is submitted the QIRC when determining the appeal should either have applied the serious question to be tried test or the flexible approach to the civil standard referred to above. That is, it should not have conducted the hearing and made the decision as though it was hearing a civil trial that was to be determined on the balance of probabilities.

[324]

[46] In coming to that view, I accept the evidence of Dr Korinihona, supported by his clinical notes which do not reveal an injury to the Appellant's neck (cervical spine) or bilateral shoulders arising out of the incident on 14 September 2017. In the report of Dr Korinihona submitted to WorkCover Queensland on 2 November 2020 the nature of the injury sustained on 14 September 2017 was described as: Musculoskeletal soft tissue contusion of upper Torso. No rib/sternal fractures. Equally, I accept that the Patient Review Summary in relation to the Appellant's attendance on Dr Asbaghinamini on 2 February 2019 did not disclose a neck (cervical spine) injury and/or bilateral shoulder injury. Moreover, the Incident Report only referred to the Appellant suffering "Back pain, lumbago, sciatica" and records "Injuries were made to the lower region of Fire Fighter Rooke's back and hip plus injuries to his rib on right side." The first record of the Appellant suffering a neck injury only appeared after he had a "face plant" on 19 June 2018.
[115] Secondly, there is no incontrovertible evidence which is contrary to the critical issue determined by the Vice President, namely, whether an injury to Mr Rooke's neck and shoulders arose out of, or in the course of, his fall at work on 14 September 2017. There is no unchallenged evidence, which the Vice President failed to take into account, which is contrary to any finding made by his Honour about that critical issue. Further, the factual findings made by the Vice President cannot be described as glaringly improbable or contrary to compelling inferences. On my review of the evidence, Mr Rooke's submissions do not point to any such conclusions.
[116] Mr Lobb's and Mr Gambin's evidence, referred to in paragraph [17] of the Primary Decision, does not persuade me that the Vice President erred in fact.
[117] Mr Lobb's evidence was that Mr Rooke told him '...he was sore - he was having troubles with his back and his neck.'[104] However, on Mr Lobb's own evidence, this statement was made to him after the date of the fall, and Mr Lobb said that it was a statement made when they were on the '...next tour', but gave no evidence of any date when that was said.[105] Further, Mr Lobb's evidence is not persuasive that Mr Rooke suffered a neck injury on 14 September 2017, in that Mr Lobb said Mr Rooke told him he was '...having troubles with his back and neck.'
[118] Mr Gambin's evidence was equivocal about the critical issue to be determined by the Vice President. Mr Gambin's evidence was that Mr Rooke told him: 'That he had - his neck and his back were sore, like he had hurt his back.'[106]
[119] Further, as the Vice President stated in paragraph [17], Mr Gambin and Mr Lobb did not refer to any shoulder injury suffered by Mr Rooke.
[120] Mr Rooke contends that the Vice President did not take into account Mr Lobb's evidence in chief that, when filling out the Incident Report, he could not describe the injury as a neck injury because of the limited range of descriptions of a computerised form.[107] However, as set out in paragraph [20] of the Primary Decision, Mr Lobb was cross-examined about his completion of the Incident Report. The transcript records:

Norton v Comcare

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