(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.