O'Kane v Comcare

Notice of Appeal 66 The notice of appeal was in the following terms. 67 The questions of law were stated to be: 1. Did the Tribunal err in law by finding that the Applicant's hearing loss was an injury other than a disease under s 5A of the Safety, Rehabilitation and Compensation Act 1988 ("the SRC Act"). 2. Did the Tribunal err in law by finding that the Applicant's tinnitus was an injury other than a disease under s 5A of the SRC Act. 3. Did the Tribunal err in law by failing to consider whether the Applicant's employment contribute[d], to a significant degree, to the development of disease under s 5B of the SRC Act. 4. Did the Tribunal err in law by failing to consider whether the Applicant's hearing loss and tinnitus constituted a disease under the deeming provisions, s 7(2) and or s 7(3) of the SRC Act. 5. Did the Tribunal fail to consider a submission of substance: whether the incidence of hearing loss and or tinnitus, or the incidence of the aggravation of hearing loss and or tinnitus, was significantly greater than the incidence among person suffering from hearing loss and or tinnitus who have engaged in other employment satisfying "contribution to a significant degree" under s 7(2) and or s 7(3) of the SRC Act; a submission capable of changing the outcome of the proceedings. 6. The Tribunal failed to provide adequate explanation as to its reasoning. 7. Whether the Tribunal failed to give findings on material questions of fact with regard to whether the Applicant satisfied s 7(2) and or s 7(3) of the SRC Act with a reference to evidence and other material on which those findings were based as required under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). 68 The grounds relied on were stated as follows: Question of law 1, 2 and 3 1. The Tribunal found that the Applicant suffered a gradual deterioration of his hearing [45] [48]. 2. The Tribunal found that the Applicant's tinnitus was perpetuated and worsened by the association with the Applicant's general hearing loss [56]. 3. Notwithstanding the factual findings by the Tribunal at [48] and [56], the Tribunal found that the Applicant's hearing loss and the Applicant's tinnitus was an injury other than a disease under s 5A of the SRC Act. 4. The Tribunal erred by restricting its consideration under s 5A to whether the Applicant suffered an injury other than a disease under s 5A of the SRC Act. 5. The Tribunal erred by failing to consider and determine whether the Applicant's ailments, that is, the Applicant's hearing loss and tinnitus were contributed to by his employment to a significant degree under s 5B of the SRC Act. 6. The approach adopted by the Tribunal in determining the date of injury in respect of the hearing loss and tinnitus was inconsistent with its finding that these were injuries other than a disease. Question of law 4 and 5 7. The Applicant made submissions at the hearing that the incidence of hearing loss and or tinnitus, and or the incidence of the aggravation of hearing loss and or tinnitus, was significantly greater for employee's (sic) driving the "301" trams than the incidence among persons suffering from hearing loss and or tinnitus who have engaged in other employment. 8. The Applicant made submissions at the hearing that the incidence of hearing loss and tinnitus amongst the drivers of "301" trams satisfied the deeming provisions under s 7(2) and or s 7(3) of the SRC Act. 9. The Applicant made submissions at the hearing that the incidence of hearing loss and tinnitus amongst the drivers of "301" trams would be taken for the purposes of the SRC Act to have contributed to a significant degree to the contraction of or the aggravation of the employee's (sic) hearing loss and tinnitus under s 7(2) and s 7(3) of the SRC Act. 10. The submission made by the Applicant under s 7(2) and s 7(3) of the SRC Act was capable of changing the outcome of the Hearing. 11. The Tribunal failed to consider, or to refer to at all, the submission of the Applicant under s 7(2) and or s 7(3) of the SRC Act. Question of law 4 and 5 12. The Applicant repeats paragraphs 6 to 10 above. 13. The Tribunal failed to give findings on material questions of fact with regard to whether the Applicant satisfied s 7(2) and or s 7(3) of the SRC Act with a reference to evidence and other material on which those findings were based as required under s 43(2B) of the AAT Act. Question of law 6 14. The Tribunal noted at 75 and 76 that the experts agreed on a work-related contribution to both the Applicant's hearing loss and tinnitus and a permanent impairment in respect of them. 15. The Tribunal failed to provide any or any adequate reason as to why this medical evidence should be ignored.

Submissions 69 The applicant submitted that the Tribunal erred in law by finding that the applicant suffered an injury other than a disease under s 5A of the SRC Act. The applicant submitted the Tribunal incorrectly applied the test in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 and Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286. This was particularly so given the finding by the Tribunal that the applicant suffered a gradual deterioration of his hearing: the applicant referred to [44], [45] and [48] of the Tribunal's reasons. The applicant submitted that the Tribunal at [50] referred to its earlier decision of Re Sandercock and Military Rehabilitation and Compensation Commission [2013] AATA 517 and failed to consider or apply the test in Zickar and Petkoska. The applicant submitted that hearing loss and tinnitus may only be classified as an injury where there is a sudden and ascertainable or dramatic physiological change or disturbance but a gradual deterioration of hearing as determined by the Tribunal at [44], [45] and [48] could not constitute an injury simpliciter as it was inconsistent with Zickar and Petkoska. 70 The applicant next submitted that the Tribunal went on to misdirect itself by failing to apply the definition in s 5B. 71 Thirdly the applicant submitted that there was a failure to consider a submission of substance capable of altering the outcome of the hearing in that the applicant's substantive argument at the hearing was that s 7(2) or s 7(3) would apply because of the high incidence of hearing loss and tinnitus amongst the drivers of '301' trams. 72 Fourthly, the applicant submitted that the Tribunal failed to provide reasons. The material questions of fact on which it was submitted the Tribunal failed to give findings were identified as: (a) why it found that a gradual deterioration of hearing constituted an injury under s 5A of the SRC Act, and not a disease under s 5B; (b) why it did not consider or make findings on significant contribution under s 5B of the SRC Act; (c) why it failed to consider the submission under s 7(2) or s 7(3) of the SRC Act; (d) why evidence that six of the 12 ACTION bus drivers who submitted hearing loss claims since 1976, drove the '301' trams between 1995 and 1998 did not constitute a greater incidence under s 7(2) or s 7(3) of the SRC Act; (e) why evidence that six of the 12 ACTION bus drivers who submitted hearing loss claims since 1976, drove the '301' trams between 1995 and 1998, was not a relevant consideration as to whether the hearing loss of the applicant arose out of or in the course of employment. 73 The respondent submitted that the first four purported questions of law in the applicant's notice of appeal were not questions of law. The respondent submitted that an appeal under s 44(1) of the AAT Act may not be brought on a mixed question of fact and law, citing Comcare v Etheridge (2006) 149 FCR 522 at 527 [16]. The fifth to seventh "questions of law" might raise a question of law, the respondent submitted. 74 The respondent submitted that the test for an injury simpliciter was whether the claimed condition amounted to a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. The respondent referred to Petkoska at [39]. The respondent submitted that the Tribunal referred at [50] to the distinction between a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state as compared to the underlying pathology that constitutes a disease. The respondent submitted that the applicant's challenge to those findings of fact on the basis that the Tribunal found that the applicant suffered a gradual deterioration and that such a deterioration could not constitute an injury simpliciter must fail for at least two reasons. First, the applicant's submission was in truth a disagreement with the specific findings of fact made by the Tribunal and there was no error of law simply in making a wrong finding of fact. Second, the Tribunal's commentary as to a "gradual deterioration", when read in context, did not amount to a specific finding of fact in relation to the question of whether the applicant suffered an "injury" or "disease". The comments appeared in the passage which addressed whether the applicant's claim was effectively statute-barred for want of notice under s 53. The Tribunal only observed that the evidence suggested that the applicant experienced a gradual deterioration in his condition. Specific findings of fact on the questions of "injury" and "disease" were made at a later point in the Tribunal's reasons. 75 The respondent went on to submit, in the alternative, that the applicant's arguments under ss 7(2) and 7(3) were incorrect in law and did not accurately reflect the evidence before the Tribunal. 76 In reply, the applicant submitted that given the significance and prominence of the s 7 argument at the hearing, the Tribunal was required at law to refer to the submission in its reasons. It failed to do so. It did not make findings as to whether s 7 applied to diseases only. In fact s 5A of the SRC Act is the definition section for the term "injury" and defined injury to include a "disease suffered by an employee". The applicant submitted that if the Tribunal wished to reject the applicant's s 7 argument on the basis that s 7 only applied to a disease, then the Tribunal was required to provide reasons as to why s 7 did not apply to injuries, having regard to s 5A of the SRC Act. The applicant also submitted that the respondent's submissions, in the alternative, as to its construction of s 7 highlighted the very complaint that the applicant had with the decision of the Tribunal.

Consideration 77 The applicant's submission that the Tribunal misdirected itself by failing to apply the definition in s 5B is, in my view, merely a consequence of the Tribunal finding that the hearing loss and tinnitus were each an injury rather than a disease. There is no separate substance in this point. In order to succeed on it the applicant would first need to succeed in establishing at least an error of law in the Tribunal's finding that the hearing loss and tinnitus were each an injury rather than a disease. 78 The applicant's submission that the Tribunal failed to consider a submission of substance capable of altering the outcome of the hearing in that the applicant's substantive argument at the hearing was that s 7(2) or s 7(3) would apply because of the high incidence of hearing loss and tinnitus amongst the drivers of '301' trams does not seem to me to be aptly expressed. The real error, if there be an error, is whether the Tribunal's finding that the hearing loss and tinnitus were each an injury and not a disease meant that the Tribunal did not have to consider the argument concerning s 7(2) or s 7(3). This would only be a separate ground if those provisions could apply as a matter of construction in light of that finding, assuming for the purposes of this ground that the Tribunal's finding that the hearing loss and tinnitus were each an injury and not a disease was not an error of law. 79 Similarly, the submission concerning a failure to provide reasons is not, in my opinion, a sustainable separate ground. In my opinion it does not provide an appropriate tool of legal analysis. Section 43(2B) of the AAT Act provides that the Tribunal's written reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. It is to be recalled that Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 established that s 430 of the Migration Act 1958 (Cth) obliged the tribunal to set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision (at [10] per Gleeson CJ, [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ, [217] per Callinan J). Section 430 provided that where the Tribunal made its decision on a review, the Tribunal must prepare a written statement that: (a) set out the decision of the Tribunal on the review; (b) set out the reasons for the decision; (c) set out the findings on any material questions of fact; and (d) referred to the evidence or any other material on which the findings of fact were based. 80 Applying that reasoning, and referring back to [72] above, (a) has no foundation in fact as the Tribunal did give extensive reasons and the matters in (b)-(e) followed from the Tribunal's findings as to injury and not disease. 81 I reject the respondent's submission that the present appeal may not be brought on a mixed question of fact and law. I do so for the reasons I gave in Comcare v Martinez (No 2) [2013] FCA 439; (2013) 212 FCR 272 at [86], that is that in Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 Allsop J, with whom Lindgren and Emmett JJ agreed, explained Comcare v Etheridge as follows, Collins being a case involving s 120 of the Veterans' Entitlements Act 1986 (Cth). His Honour was considering an argument, the first of two arguments, that even if the Tribunal had gone beyond the process of assessment and had entered into the prohibited domain of fact-finding, prohibited because of the terms of s 120 of the Veterans' Entitlements Act, that was not a question capable of raising a question of law for the purposes of s 44 of the AAT Act, and that the Tribunal could only be found to have erred if the conclusions it reached were unreasonable or capricious (at [55]): [55] The first of these two arguments rests on a number of Full Court decisions including Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232 at [18]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; [2003] FCAFC 244; Comcare v Etheridge (2006) 149 FCR 522; [2006] FCAFC 27; and HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291; [2006] FCAFC 34. These authorities, it was submitted, prevented an error of the kind asserted (that the Tribunal exceeded what was legally open to it to do in the formation of its opinion for s 120(3)) being capable of being a question of law for the purposes of s 44 of the AAT Act. This was so, it was submitted, because the Court would need to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. I reject this argument. Nothing in any of the cases referred to at the commencement of this paragraph gainsays the proposition that a properly framed question of law directing the Court's attention to the manner in which the Tribunal failed to discharge its obligations according to law under s 120(3) can be the subject of an "appeal" under the AAT Act. All those cases were directed at the necessity for there to be a proper and precise framing of a "question of law" to found the statutory authority of the Court under s 44 of the AAT Act to dispose of the appeal. Nothing in these cases limits the reach of s 44 to questions of law divorced from the need to look at facts. If, as here (on the hypothesis put forward on behalf of Mrs Collins), the Tribunal has begun a process of fact finding by preferring some evidence to other evidence or by rejecting conflicting material in the formation of its opinion as to reasonable hypothesis, it would have exceeded the statutory task required of it under s 120(3) of the Veterans Act. There can be no doubt that a properly framed question of law raising that legal error would be the legitimate subject of an "appeal" under s 44 of the AAT Act. All the cases relied upon were dealing with what has become an endemic problem in the failure of applicants in appeals under s 44 to frame the question as a question of law, including, but not limited to, the practice of raising of factual issues or simply expressing subject matter to set the outer limits of debate before the Court. As I observed in Martinez: [87] It follows that it is too simple a proposition to say that there cannot be a question of law within s 44 of the AAT Act merely because it is necessary to examine the handling of the facts by the Tribunal and also because at most the question would be a question of mixed fact and law and not a pure question of law. 82 Thus the matter comes down to two questions, one is whether there is any legal error in relation to the finding that the applicant suffered an injury other than a disease and the second is whether in those circumstances, as a matter of construction, s 7(2) or s 7(3) has any application. 83 On the first question I have identified, in my opinion the Tribunal was well aware of and applied the distinction drawn in Petkoska and approached the question by giving consideration to the precise evidence concerning the nature and incidents of the physiological changes which it found. The Tribunal referred at [50] to its earlier decision in Re Sandercock which had expressly considered Petkoska. I reject the applicant's written submission at [26] that there was an error of law in that the Tribunal failed to consider or apply the test in Zickar and Petkoska. I note that that submission was withdrawn in the course of the hearing of the appeal before me. 84 The applicant then put the submission that, notwithstanding the explicit reference by the Tribunal to the test which the applicant pressed as the correct test, the Tribunal did not seem to consider whether there had been a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state or, if it did consider it, the Tribunal did not say why it found that there had been such a change. The Tribunal could not identify, and did not identify in its reasons, the submission went, any date or day that there was an ascertainable change in the physiological state. The Tribunal referred to some evidence in relation to damage to the hairs of the inner ear but this, the applicant submitted, was similar to Comcare v Etheridge where the asbestos fibres infiltrated the lung. The Tribunal found that gradual deterioration constituted an injury simpliciter under the SRC Act and, the applicant submitted, the Tribunal simply could not do that in law. 85 I was taken to Comcare v Etheridge in some detail, at [27] and [32]-[52], especially at [45], but I see nothing in it which shows that it was an error of law for the Tribunal to proceed as it did in the present case. This is not surprising since Comcare v Etheridge was an asbestos case. Also it was concerned relevantly with the construction of the 1971 Act. Further, in the passages to which I was taken, the Full Court was dealing with the question whether the mere experiencing of an event or condition necessary for the development of the disease contracted by gradual process was capable of constituting an "injury" within the meaning of the relevant legislation in force before the SRC Act. The Court answered that question "No". But that, in my view, does not show error in the present case. To reason as the applicant's submissions did tends to confuse findings of fact with questions of construction of the legislation. It does not show that the present Tribunal erred in law in misunderstanding the word "injury" or, indeed, that it erred in law in finding the facts as it did. 86 In my view the clear finding of fact of the Tribunal in the present case was that a number of events each constituted an injury and, over the years, had a cumulative impact. The Tribunal said that, in the case of the applicant's hearing loss, the assault in 1996 and the loud continuous noise from driving buses which damaged the sensitive hair cells of the inner ear were injuries. I see no legal error in so finding. It is also relevant that the Tribunal applied the distinction between injury and disease in stating that the applicant's age-related and familial predisposition would be characterised as slowly degenerating or congenital conditions and hence, if employment-related, diseases. In relation to tinnitus, the Tribunal found that the applicant first noticed tinnitus following the assault in 1996 and that the condition had been perpetuated and worsened by association with his general hearing loss, both being characterised as injuries. I see no legal error in so finding. Again the Tribunal noted that the applicant's presbyacusis and familial predisposition would be characterised as diseases. 87 I note that the applicant did not plead a "no evidence" ground nor put a "no evidence" submission. 88 I do not accept that, in order to find as it did, the Tribunal was required to make a finding of fact as to the specific date on which each such injury occurred. It would be placing a gloss on the words used in Petkoska at [39] per Gleeson CJ and Kirby J to read "ascertainable" as "ascertained" to the effect that each such damage to the applicant was required by the SRC Act to have a date attributed to it or that the Tribunal's reasons were deficient if no such date were so attributed. I also bear in mind that the words used in a judgment are not to be construed as if they were statutory language nor are they to be substituted for the words of the statute. 89 Insofar as the applicant contended that the Tribunal's reasons in this respect were inadequate, I reject the contention as founded on a construction of the SRC Act or on an application of Petkoska which I do not accept. In other words, the alleged deficiency of reasons stood or fell with the underlying issue of construction or application. 90 I do not accept that any legal error is established by comparing [44], [45], [48] and [56] of the Tribunal's reasons with its ultimate findings. Not only are the findings in the earlier paragraphs to do with the question of whether the claim was brought within time but also, and more significantly, I see no inconsistency amounting to a legal error between the findings of injury and the developing nature of the injury such that a person may be prevented from becoming aware of the deterioration of their hearing. 91 At one point it was put in oral submissions to me, on behalf of the applicant, that the error of law attributed to the Tribunal was founded in a lack of procedural fairness as neither party had put to the Tribunal that the applicant's hearing loss should be characterised as an injury. I reject this submission for two reasons. The first is that it was not open on the notice of appeal and no application to amend was made to me by counsel for the applicant. Second, I was taken to the transcript of the hearing before the Tribunal where the Tribunal raised the question and referred to its earlier decision in Re Sandercock where it had decided, after considering whether hearing loss should be characterised as "injury" or "disease" for the purposes of the SRC Act, that on the facts in that case hearing loss and tinnitus constituted an injury. Counsel for the applicant said he was aware of that decision. It was not then said, and in my opinion it is not maintainable now, that characterising the hearing loss as an "injury" was not open on the statements of facts, issues and contentions or written submissions in the Tribunal. Also, it is not clear to me why an applicant would seek to dissuade the Tribunal from that approach since, as the Full Court observed in Australian Postal Corporation v Burch (1998) 85 FCR 264 at 268, the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury and an employee seeking compensation, like the respondent in that case, will naturally enough try first to show that he or she has suffered an injury (in the ordinary sense). 92 For these reasons, I do not accept that the finding of the Tribunal that the injury in respect of the hearing loss was the damage to the sensitive hair cells of the inner ear involved a legal error. 93 Finally and independently, I note that Comcare v Etheridge concerned the definition of "injury" then contained in s 4(1) of the SRC Act, relevantly (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment. Justice Branson, with whom Spender and Nicholson JJ agreed, said at [26] that it was not suggested that the word "injury" there used was used in other than its ordinary or common meaning. Consequently, her Honour said, the question of whether facts as found fell within the meaning of the word "injury" as defined was a question of fact rather than a question of law, citing Hope v Bathurst City Council (1980) 144 CLR 1 per Mason J at 7. Whether, in light of the terms of the present definition and the extensive judicial exegesis surrounding this word, that conclusion sits comfortably with the approach of the Full Court in Industry Research & Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at [49]-[62] per Lindgren J with whom, at [86], Mansfield J agreed was not argued before me and I say no more about it. 94 As to the second of these questions, s 5A provides, so far as presently relevant: 5A Definition of injury (1) In this Act: injury means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; …. 95 Sections 7(2) and (3) are in the following terms: (2) Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed. (3) Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed, to a significant degree, to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed. 96 The first of these two provisions in s 7 is concerned with the contracting of a disease and the second with the suffering of an aggravation of the disease. 97 In my opinion the second of the two questions I have identified, that is, whether in circumstances where the Tribunal has found that the applicant suffered an injury other than a disease, s 7(2) or s 7(3) have any application must, as a matter of construction, be answered unfavourably to the applicant. The misconception involved in the submission is that s 7(2) or s 7(3) applied by virtue of the definition in s 5A. 98 It is of course true to say that the definition of "injury" includes, unless the contrary intention appears, "a disease suffered by an employee". But that is a definition section. It shows what the legislature means by the word "injury". It does not authorise the substitution of the word "injury" wherever the word "disease" appears in the SRC Act. As it seems to me, this is the construction for which the applicant contends. I reject this submission. 99 In my opinion absent any error in relation to the first question I have identified, this ground must fail because the Tribunal found at [53] that the claimed condition of hearing loss was an injury other than a disease and at [56] that his claimed condition of tinnitus was an injury other than a disease. It follows from these findings that neither s 7(2) nor s 7(3) were engaged. It also follows that the Tribunal was not obliged to give any reasons for that self-evident conclusion of law. Alternatively, there was no material error in the Tribunal not giving reasons for that conclusion because this Court has held that on the facts found and conclusions reached by the Tribunal neither s 7(2) nor s 7(3) were engaged. 100 I assume, but it is not of present relevance, that the parties before the Tribunal put submissions about s 7(2) and s 7(3) because one of the issues before the Tribunal was whether the claimed conditions of hearing loss and tinnitus were an injury other than a disease or whether they were, or one of them was, a disease. Only in the case of a finding of disease may s 7(2) and s 7(3) have been engaged. 101 For these reasons the grounds relevant to the second question, whether put as a failure to consider a submission of substance or a failure to give reasons, fail.

Conclusion 102 I dismiss the appeal. The respondent sought to be heard on costs if the applicant were unsuccessful and for that reason I reserve the question of costs. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.