O'Donnell v K & S Freighters Pty Ltd

3. The Arguments in this Court 33 Mr O'Donnell advanced three arguments in this Court: 34 (a) The Causation Question: Mr O'Donnell submitted that the Tribunal had failed to deal with the evidence advanced by Dr Giblin at the hearing, that is to say, the third theory advanced above. The passage at [86] set out above either showed that the argument had not been considered at all or it revealed reasons which were inadequate in law for dismissing that argument. For the respondent it was submitted that the argument had been dealt with at [86], especially in light of what had been said during the hearing. Regardless, so it argued, the reasons were more than adequately expressed and it was a mistake to read the reasons of a body such as the Tribunal with an eye attuned to the detection of error, particularly where one of its members was a medical expert. 35 (b) The Fairness Argument: Although the Tribunal accepted that Mr O'Donnell had been injured by his fall and although all parties accepted the existence of his pain, the Tribunal concluded that Mr O'Donnell was a poor historian prone to exaggeration. Mr O'Donnell submitted that this was tantamount to a finding that he was dishonest and that this had not been put to him in cross-examination. He also submitted that the Tribunal had denied him procedural fairness by adopting this view without first hearing from him. For the respondent, it was submitted that the inconsistencies had been put to him and that no breach of the rules of procedural fairness had occurred. 36 (c) The Incapacity Issue: Mr O'Donnell submitted that the consensus of medical opinion before the Tribunal was to the effect that he was incapacitated in various ways. Despite this the Tribunal had made no such finding. The respondent submitted, inter alia, that this did not matter in light of the Tribunal's conclusion that the claimed ailment did not arise from the fall. 37 It is useful to deal with the issues in the above order.

(a) The Causation Question 38 It is apparent from the emphasised portion of [86] of the Tribunal's reasons that, with respect, it did not understand the third theory. Dr Giblin did not suggest that the degenerative cervical spine problems were caused by the moderate soft tissue injury. He explicitly accepted that the cervical degeneration was age-related. His evidence was that around 10% of persons who had pre-existing minor cervical damage experienced neck problems after suffering a soft tissue injury to their shoulder. Although not definitive on the issue of pathology, he thought this might occur because of increased strain on the neck caused by the shoulder girdle becoming locked. But he did not suggest that this mechanism caused the cervical damage. His evidence was that it aggravated it. 39 That the Tribunal did not correctly apprehend the theory which was being posited is, I think, demonstrated by the immediately preceding sentence in [86] (set out above). Dr Giblin accepted that there was a pathological basis for Mr O'Donnell's symptoms, namely, the age-related degeneration of the cervical spine. The fact that he appeared to accept this possible pathological origin and that the temporary resolution effected by the steroid injection was also consistent with this origin was, therefore, not a problem for his theory of what was taking place. To the contrary, the pre-existing pathology was the point of departure for Dr Giblin's argument. That the Tribunal thought that Dr Giblin's acceptance of this point was a concession against interest strongly suggests that the misstatement in the second last sentence is not some mere slip or textual error which can be overlooked: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. In making that observation I accept that a court should be slow to conclude that such an error in medical reasoning has occurred where one of its members is a medical practitioner: Telstra Corporation Ltd v Warren [1997] FCA 102 per Tamberlin J. Be that as it may, I am satisfied that just such an error has been made. Nor do I think that the exchanges set out above between Dr Giblin and the Tribunal dispel the error under consideration. 40 Mr O'Donnell's case on this point was based on direct, albeit late, testimony of Dr Giblin and was fully articulated in his final written submission. It was thus a substantial part of Mr O'Donnell's case, indeed, it was the final form of Mr O'Donnell's case in the Tribunal. The Tribunal's failure to deal with a substantial and clearly articulated argument involved a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24], 407 [88] and 408 [95] (HC). 41 In this Court much of the focus of Mr O'Donnell's argument was, perhaps unfortunately, on the idea that the Tribunal had failed to deal with the case he presented because it had failed to apply the principle in Watts v Rake (1960) 108 CLR 158 at 160. That case holds compensable an injury which occurs as a result of an injury acting upon an earlier predisposition. Certainly, Mr O'Donnell's case was of that kind but that it was so neither advances nor detracts from the underlying point which was that Mr O'Donnell was denied procedural fairness because the essence of the case he was putting was not considered. 42 The appeal must be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal to be determined according to law.

(b) The Credibility Issue 43 The Tribunal's ultimate conclusion was that the symptoms Mr O'Donnell suffered arose from, and only from, the degenerative changes in C6/C7 and were, for all intents and purposes, unrelated to the shoulder injury he suffered as a result of the fall on the breezeway. The Tribunal ultimately did not make explicit findings about what Mr O'Donnell's symptomology was although it recited the evidence. It did, however, find that Mr O'Donnell was an unreliable witness when it came to reporting his symptoms. At [72] it said this: '72. His description of the incident has evolved over time. Overall we found the Applicant to be a poor historian. This necessarily led us to be somewhat sceptical about the Applicant's claim that all his work limitations are attributable to his injured shoulder, and, to a lesser extent, his wrist and left leg injury occasioned in the incident. For the reasons discussed below we came to the view that the Applicant was either exaggerating his claim or conflating his ongoing complaints with the symptomatology associated with the incident.' 44 Given that the Tribunal's reasoning did not descend an identification of Mr O'Donnell's symptoms and that it ultimately appeared to accept that his symptoms were genuine, it is hard to discern the point of these observations. 45 Mr O'Donnell's argument is not, however, that any legal error is disclosed in making unnecessary adverse credit findings or even that such a practice might be, as it probably is, unwise. His point is that it was procedurally unfair. 46 The cross-examination of Mr O'Donnell involved many challenges to his recollection of what had occurred and what he had reported to various doctors. So for example, at T21-23 the cross-examiner questioned Mr O'Donnell about the precise circumstances of his fall before exploring inconsistencies between that account and the version subsequently given to some of the doctors. He was then asked these questions: 'Mr Snell: You got stuck on a piece of steel, let's not quibble about the exact terminology, but what I'm putting to you is that you didn't tell your doctors initially that you were flung five or six met res as you've told the tribunal here today? --- I don't remember what I said to him, I don't --- But if it had been the case that you'd had this incident where you're flung five or six metres, presumably, you'd have told the doctors about that in the same way as you've told it to us today? --- I do not remember what I said to my doctor at the time but I explained to my doctor exactly how the fall happened as I've explained it to you now.' 47 It is tolerably clear from this that the cross-examiner was suggesting to Mr O'Donnell that the accident had not happened in the way that he testified that it had. This became even clearer when this exchange occurred at T26: 'What I'm suggesting to you is that in fact your description of the incident has become increasingly significant in terms of its violence as time has gone by and as you have recounted it on successive occasions, what do you say to that? --- I have explained it exactly the same way as I've explained it here today. Every doctor has had a different opinion on how I did have the fall and as I've corrected every doctor up at the time, I was impaled on a bit of steel, I did not trip over the piece of steel.' 48 It is difficult to avoid the conclusion, therefore, that the accuracy of Mr O'Donnell's account was challenged under cross-examination. The matter is, however, made more complex by the fact that despite the cross-examination the respondent did not ultimately submit to the Tribunal that it should conclude that Mr O'Donnell's account of his symptoms or the circumstances of the accident should be rejected. Those submissions appear at T88-98. The respondent's central argument was that the constellation of symptoms from which it accepted that Mr O'Donnell was suffering were caused only by the constitutional degeneration in his spine. Perhaps the clearest exposition of the argument was at T97 when this submission was made: 'Now, this isn't a case where the respondent, as it might have done if, for instance, let's say - it's obviously not this case - but if there had been evidence of fraud or manufacturing of an injury - say it was established that injury never happened - the employer would be entitled to go back and revoke its acceptance of liability ab initio. This isn't that case. Here, the respondent accepts its liability to pay compensation under the Act where the particular provisions in issue are properly attracted. That is, the need for medical treatment or the inability to work at the same level, result from the accepted injury. And that's what we say isn't demonstrated here. Such incapacities he has does not result from the subject injury.' 49 This tends to suggest that the procedural unfairness was not that Mr O'Donnell was not given the opportunity to respond directly to the suggestion that he was exaggerating his symptoms and the circumstances of the accident - plainly he was. Rather, it emerges from the Tribunal making adverse credit findings about Mr O'Donnell when the respondent did not submit to the Tribunal that it should. Because it was not put to Mr O'Donnell's representative he was denied, so it seems to me, the possibility of making two submissions: (a) to point out to the Tribunal that, given the position adopted by the respondent, it was not necessary to make any such finding; and (b) to take issue with the argument on its own terms. 50 I do not think that any submission of either kind could, however, have affected the outcome of the proceeding before the Tribunal in the sense of changing the result. The adverse credit findings made by the Tribunal were disconnected from the final result because they were irrelevant to any part of the Tribunal's actual reasoning process. This has the consequence that whilst the actions of the Tribunal involved procedural unfairness - adverse credit findings were made which were not sought by the respondent - that procedural unfairness was of no direct relevance. 51 This would ordinarily provide a secure basis for withholding relief. However, the fact is that adverse remarks have been made about Mr O'Donnell's credit without him being given the opportunity to respond by way of submission. Those findings include statements to the effect that: his evidence was 'problematic'; he was a poor historian; his description of the incident had evolved over time; and he was exaggerating his evidence or conflating his ongoing complaints with the injuries suffered in the accident. 52 Whether this is to be viewed, as Mr O'Donnell submits, as a finding that he was dishonest or, instead, that he was an exaggerator, it cannot be seriously doubted that it was an adverse statement about his character and reputation. 53 It is established in administrative law that reputation is a sufficient interest to attract the rules of procedural fairness and that it can be vindicated by a declaration: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 and 597. In Ainsworth itself the Court made a declaration although it did not issue certiorari to quash the Criminal Justice Commission's conclusions. In this case, I have already concluded that the Tribunal's decision should be set aside. I would not have set it aside on this ground due to a lack of utility. Despite that, I propose in the circumstances to declare that the Tribunal's conclusions at [71] and [72] were reached in breach of the rules of procedural fairness.

(c) The Incapacity Issue 54 Mr O'Donnell submitted that there was a considerable amount of medical and other evidence before the Tribunal which tended to prove that he was incapacitated for work. The Tribunal made no finding about this. It was submitted that the Tribunal had failed to provide adequate reasons for concluding that he was not incapacitated. 55 I reject this argument. No question about the adequacy of the reasons arises. The Tribunal concluded that Mr O'Donnell's difficulties were unrelated to his fall. It had, therefore, no occasion to consider the extent of his incapacity. In that sense, its reasons are adequate.

4. Conclusions 56 In view of the unnecessary adverse credit findings the Tribunal will need to be reconstituted on remitter. 57 I make the following orders:
   1. The appeal be allowed.
   2. The Respondent is to pay the Appellant's costs as taxed or agreed.
   3. The orders made by the Tribunal on 3 July 2014 in proceeding 2012/3679 be set aside.
   4. Declare that paragraphs 71 and 72 of the Tribunal's reasons were arrived at in breach of the rules of procedural fairness.
   5. Remit the matter to the Tribunal, freshly constituted, for hearing according to law. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.