Shingles v DFRDBA [2005] FMCA 1251

Shingles v DFRDBA [2005] FMCA 1251 - FMCA 2005 case summary — Zoe

[10]

21. Mr Shingles informed the Tribunal that he had numerous jobs in civilian life. He explained that he tried to run his own business such as an orange juice run, but stated that this did not remain viable because of his alcohol consumption and nerves. At the same time, Mr Shingles was doing part time maintenance work for a real estate agency and his wife was running a boarding house. Mr Shingles worked intermittently at a rock quarry but could not continue due to the difficulty he experienced when wearing boots. He undertook bar work in various hotels as well as casual work in Albury. In relation to this, however, Mr Shingles stated that the relevant Union at that time told him he had to wear steel-capped boots, which he could not do. Mr Shingles worked in Canberra in 1978/1979 but continued to consume alcohol, further explaining that he was self medicating, as a way of trying to cope with his "nerves". Mr Shingles stated that he was dismissed from various positions during that period. In 1979 to 1980, Mr Shingles had a number of short term positions but again was having problems with his feet and having to deal with people. In 1980, Mr Shingles had his own trucking business for approximately ten months and (with his own truck) would make deliveries to Brisbane, working six to eight hours at a time, two or three days per week. In 1981, Mr Shingles worked interstate for Ansett making deliveries between Melbourne and Sydney. This work ceased because he lost his licence in about 1984. Mr Shingles worked at the Cowra Abattoir and, when he lost his licence, he swept the floors of the abattoir up until 1989. At various times, when he did have his licence, Mr Shingles undertook casual driving. In 1989, Mr Shingles broke his right ankle and was on Sickness Benefits for six or seven months. After that time, he worked casually, delivering goods around Sydney. He lost his licence for three years in 1990 or early 1991 and then was provided in 1992 with the Special Rate or the "TPI pension".

[20]

75. The Tribunal now turns to the central issue in this matter, which is the degree of incapacity expressed in percentage terms, in relation to Mr Shingles' condition of the lower limbs. In reaching a decision on this issue, we note Re Thomson and Defence Force Retirement and Death Benefits Authority (supra) which while dealing with section 34 of the 1973 Act, provides some guidance in this matter. Davies J stated at 433:

"The width of the range of employment is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but may preclude the person from working more part-time or intermittently. Thus the determination of a percentage is not to be undertaken as if it were a mathematical calculation. Rather, it is a value judgement of the extent to which, expressed in percentage terms, and taking into account only the matters set out in subsection 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment.

On the day after discharge, and for some time after that, Mr Shingles was able to work as a storeman and in other associated positions in full-time employment. The Applicant was able to wear soft shoes and while requiring another operation to his feet in 1978, appears (from oral evidence provided by Mr Shingles and from contemporaneous documentary evidence) to have continued in employment. On at least one occasion, Mr Shingles was able to work in his own business on an orange juice run in addition to providing part-time maintenance work for a real estate agent. The Tribunal also finds that while the bilateral foot condition worsened in 1989 after Mr Shingles fractured his right ankle, he certainly was not operating at the day after discharge at a degree of incapacity which would indicate moderate incapacity as reflected in the B classification of 30 to 60 per cent.

76. In relation to Mr Shingles' condition of post traumatic stress disorder, the Tribunal has accepted that this condition was present at the time of retirement but again, when reference is made to the contemporaneous material, the degree of impairment is not made out on all of the material to be greater than 30 per cent. In this regard, the Tribunal notes that in terms of symptoms of post traumatic stress disorder and the secondary condition of alcohol abuse or dependence, the first driving under the influence charge occurred in 1973, two years after discharge. Furthermore, the condition of post traumatic stress disorder, while possibly impacting on the number of short term jobs undertaken by Mr Shingles, did not prevent the Applicant from gaining fulltime employment. The Tribunal also notes that there is no treatment or record of psychiatric assistance until at least the 1980's. All of the evidence suggests to the Tribunal that post traumatic stress disorder was mild at the time of retirement and that it only assumed prominence, as reflected in reports from psychiatrists and by his coming into contact with the police, as a result of the adverse effects of alcohol consumption, occurring years after retirement and more especially in the late 1970's and 1980's. Hospital admission for post traumatic stress disorder did not occur until 1991. The Tribunal also notes the Special Rate Pension was granted in 1992, reflecting that Mr Shingles was totally and permanently unable to work at that time.

[37]

Any determination of a "percentage of total incapacity" requires a comparison between the incapacity of the person at the time of the determination and an entire loss of capacity for these are the components which yield the percentage. A comparison in percentage terms requires the selection of the appropriate point upon a scale which runs from 0 to 100, a scale which runs from an undiminished capacity (0%) "in relation to civil employment" to a total incapacity (100%). A moment's reflection reveals the difficulty of the task which confronts the Authority. What is comprehended by the phrase "civil employment"? What is the nexus between incapacity and civil employment which is expressed by the phrase "in relation to"? The uncertain connotation of the terms may lead to unevenness in administration of the Act for the statutory test may take on different meanings in the minds of those who administer its provisions. It is necessary therefore to define the meaning of s.51(2) in order rightly to apply the relevant principles to the facts of the case.

"Civil employment" comprehends both an engagement to work, whether under a contract of service or for services, and the remuneration or benefits which are the tangible fruits of such an engagement.

"Incapacity" in relation to civil employment thus comprehends an incapacity in relation to the engagement of the person to work and in relation to the earning of remuneration and other work - associated benefits. Diminution in earnings is not the only criterion for determining the percentage of that incapacity - indeed there may be cases where there is a substantial incapacity affecting the employability of a person entitled to benefit which does not produce any, or any significant, effect upon his earnings. On the other hand, a relatively minor diminution in employability may entail a large loss of income, and occasion a substantial percentage incapacity.

"Incapacity in relation to civil employment" is a wider concept than the "ability to earn income". An "incapacity" may be said to be "in relation to" civil employment if the opportunities to engage in civil employment and to derive benefits from that employment are restricted by reason of the incapacity.

If there be no incapacity of the relevant kind, a person's talents - his education, training, skills, physical strength, personality or other attributes - open to him a range of employment opportunities. The range may cover opportunities for engaging in various kinds of employment, for earning various levels of remuneration and for deriving tangible and other benefits. These are the opportunities which are appropriate to the individual - his own range of employment opportunities estimated by reference to the talents which, but for the incapacity, he would have had. When he suffers an incapacity, some of these opportunities are denied to him. He suffers an incapacity in relation to civil employment. A comparison between the lost opportunities and the whole range of the individual's employment opportunities provides the measure of his percentage incapacity.

The comparison is made and the percentage of any incapacity is determined by reference to the importance which the lost opportunity has for the individual. That is not to say that importance depends upon the individual's subjective assessment of his incapacity, or upon his emotional reaction to the loss of the employment opportunity. An objective assessment is required which takes account of the circumstances peculiar to the individual. An objective assessment may reveal that a significant physical disability, e.g., the amputation of a hand, is of much greater importance to a man whose talents limit him to labouring than to one whose talents qualify him for clerical work. The loss of any employment talent is of more importance to one whose talents are only marginally sufficient to secure employment in good economic conditions, for he will assuredly lose employment opportunities in times of adverse economic conditions. However, the determination of percentage incapacity does not vary with the swing of the economic pendulum. Employment opportunities are estimated by reference to the talents which the individual possesses, and it should be assumed that the talents which he had and the talents which he would have had would give or would have given opportunities for employment in which those talents would be or would have been used. Once the extent of the lost opportunities is assessed, the importance of that loss may be assessed and the percentage incapacity thereby determined. Economic changes, or the prospect of economic changes, will have varying importance for the individuals whose percentage disability is to be determined. Events may prove the initial determination to be right or wrong. They may show that the percentage disability (which was determined after taking into account the various employment opportunities which were lost or likely to be lost) was determined at too high or too low a percentage. The error that thus becomes apparent may be corrected either on the application of the person entitled to benefit or by the Authority on its own initiative. But error will not be shown merely by the occurrence of an event which the Authority had already taken into account.

[65]

• A substantial failure by the AAT to state reasons for its decision constitutes an error of law: Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), at 573; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (FCA/FC), at 95-96, per Sackville J.

• The duty must be sensibly interpreted and applied, with a view to achieving good and effective administration. It is not necessary that reasons address every issue raised in the proceedings; it is enough that they deal with the substantial issues upon which the decision turns: Dornan_, at 567-568;_ Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 (FCA/Wilcox J), at 481. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690, at 691:

"Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include `findings on material questions of fact'."

• Regard must be had to the composition of the Tribunal which (as in the present case) does not necessarily include trained lawyers. Section 43(2B) does not require a standard of perfection: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC), at 157, per Sheppard J.

• A restrained approach to judicial review of AAT decisions is appropriate: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) [1980] FCA 96; (1980) 47 FLR 131 (FCA/FC), at 145, per Fisher J. The reasons of the AAT should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FCA/FC), at 287, approved in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 271-272.

• The assessment is to be made having regard to the AAT's reasons as a whole: Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029, at 5032, per Lockhart J.

• Despite the above qualifications, if the AAT's reasons do not expose its reasoning process, in the sense that it does not enable a proper understanding to be obtained of the basis on which a decision has been reached, the decision involves an error of law: Australian Telecommunications Commission v Barker [1990] FCA 489; (1990) 12 AAR 490 (FCA/FC), at 492; East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 (FCA/Hill J), at 466-467.

[84]

As to the percentage incapacity figure reached by the Tribunal with respect to the individual areas of impairment it is notable that with respect to the post traumatic stress disorder three experts provided different estimates of the percentage incapacity, and that importantly two of those experts gave a percentage far greater than the figure struck by the Tribunal. As a result it appears that the Tribunal must necessarily have rejected the percentage assessments by Doctors Altman and Robertson. However, there are no reasons setting out why their opinion was not accepted, nor the considerations that may have impacted upon that evidence.

This is of particular concern in a case where the only expert that appears to have been accepted on a significant point 'felt somewhat "shame-faced" when reading his earlier report in which he concluded that Mr Shingles did not have full blown post traumatic stress disorder'.

With respect to the orthopaedic experts; Dr Sachdev was of the view that at the time of discharge the appellant's incapacity was in the vicinity of 10% to 30% and that his impairment was now in the vicinity of 30% to 60%; whereas Dr Conrad expressed the view that at discharge his orthopaedic incapacity would have been 35% (in his report), and between 10% and 30% (during his evidence before the Tribunal).

There are no reasons explaining why the very bottom end of the range given by the orthopaedic surgeons was adopted by the Tribunal.

The final matter relied upon by the appellant was that the Tribunal appears to have added together the two percentage impairments identified for each of the two different forms of impairment without considering the extent, if any, to which they may, taken together, result in a greater or lesser percentage of disability.

It appears to me that the flaw in the approach of the Tribunal is not simply adding the two figures, but the reasoning process by which the Tribunal has approached the overall impairment. The combined effects of the impairments must be taken in the context of the range of civil employment that was previously open to the applicant. Whilst counsel for the respondent argued that the statement of the Tribunal at the end of paragraph 77 shows that they did consider the matter in this light, it does not appear to me to satisfy the requirement for reasons.

In the circumstances I find that the Tribunal has failed to take relevant matters into account in considering the capacity of the applicant to engage in civil employment.

The Tribunal also took into account an irrelevant consideration when considering the appellant's capacity for employmen;. The Tribunal took into account that the appellant had continued his school education until the age or 18 (see paragraph 74 of the decision) when there was no evidence to support this finding (the evidence being that he left school at 15 years, as recounted at paragraph 9 of the decision).

In this case I find that the Tribunal has failed to provide adequate reasons for its decision and the appeal should also be allowed on this basis.

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