Slattery, John Adrian v Comcare [1996] FCA 883

e period 1970-1978 and on the basis of permanent incapacity for work for the period 1978 - 1993. In 1987 the applicant issued common law proceedings to recover damages in respect of the personal injuries suffered by him as a result of the Voyager collision ("Voyager injuries"). On 3 August 1993 the common law proceedings were settled by the Commonwealth agreeing to pay a substantial sum to the applicant for damages. As from 13 September 1993 the respondent ceased to make further compensation payments to the applicant. On 21 March 1994 the respondent determined that by reason of the common law settlement no further compensation was payable to the applicant. The ground for the determination was that common law damages recovered by the applicant in respect of the Voyager injuries terminated any further entitlement of the applicant to compensation. In his determination the delegate accepted that the Evans collision "aggravated" the applicant's existing condition but regarded the Voyager collision as "the primary causal factor" in relation to the applicant's "accepted conditions" which had manifested prior to the Evans collision. I assume that the accepted conditions were those set out in the 2 December 1987 determination. The applicant sought a reconsideration of the 21 March 1994 determination which was affirmed. He then applied to the Administrative Appeals Tribunal ("the AAT") for a review of that determination. On 29 August 1995 the AAT varied the determination to provide that compensation is not payable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") until the applicant's entitlement to compensation exceeds the amount of damages recovered under the common law settlement. Save for that variation the determination was affirmed. The applicant has appealed to the Court on the ground that the decision of the AAT involved an error of law. The issue arising for determination before the AAT was whether the injuries in respect of which common law damages were recovered were the same injuries as those for which compensation was payable. It was common ground between the parties that if that question was answered in the affirmative, under the legislative scheme for compensation, the applicant's entitlement to further compensation payments ceased until the compensation payable exceeded the amount of the damages recovered.

The legislative scheme The respondent's liability to pay compensation arose under the 1988 Act which by its transitional provisions incorporated provisions of the 1930 Act and the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"). In its decision the AAT set out the complex, interacting and transitional provisions of the three relevant Acts. The parties and the AAT appeared to accept that the respondent's entitlement to terminate the applicant's compensation payments was governed by the relevant provisions of s.99(2) of the 1971 Act. Section 48 of the 1988 Act provides that where a claim for damages was made prior to 1 December 1988, as occurred in the present case, s.99 (other than s.99(1)) of the 1971 Act applies. Section 99(2) of the 1971 Act provides: (2) Subject to this section, the compensation that is payable under this Act to the employee in respect of the injury, loss or damage or for the benefit of the dependant in respect of the injury that resulted in the death, as the case may be, is so much (if any) of the compensation under this Act that, but for this section, would be so payable as exceeds the amount of the damages recovered by the employee or by or for the benefit of the dependant, as the case may be. I should add that the legal issues requiring resolution in the present case would appear to be the same irrespective of whether they arise under s.99 of the 1971 or its counterpart being s.48 of the 1988 Act. The terms of each Act seek to prevent "double dipping" and, in respect of the issues arising before me, appear to operate in essentially the same manner: see Telstra Corporation Ltd. v. Barrow (1994) 19 AAR 523 at 533-5. The applicant's entitlement to compensation arose under the 1930 and the 1971 Acts and was continued by the 1988 Act. It was payable to the applicant as an employee as compensation in respect of the "personal injury" caused to the applicant as a result of the Voyager and the Evans collisions being injuries arising out of or in the course of the employment of the applicant: see s.9(1) of the 1930 Act and s.27(1) of the 1971 Act. Under each Act injury was defined as meaning any physical or mental injury and included the aggravation, acceleration or recurrence of any physical or mental injury: see s.4 of the 1930 Act and s.5 of the 1971 Act. The aggravation, acceleration or recurrence of an injury is distinct from the injury and is an injury in itself: see Australian Telecommunications Commission v. Leech (1982) 44 ALR 441 at 445 per Fox & Lockhart JJ. The law A number of propositions are well established in workers compensation law. Although a worker's entitlement to compensation accrues when an injury is suffered, an employer's liability to pay weekly payments does not arise until incapacity supervenes on the injury or injuries that caused or materially contributed to it: see Fisher v. Hebburn Ltd. (1960) 105 CLR 188 at 202-3 and Accident Compensation Commission v. C.E. Heath Underwriting & Insurance (Aust.) Pty. Ltd. (1994) 121 ALR 417 at 420-421 per Brennan J. In C.E. Heath Brennan J at 421, in discussing the liability of an employer to make weekly payments in respect of any injury which caused or materially contributed to the incapacity referred with approval, to the following passages In Bushby v. Morris the Privy Council said in reference to the New South Wales Workers' Compensation Act 1926: It is well established in common law contexts that an injury or incapacity may be attributable to more than one cause, in the legal sense, operating concurrently...There is no room for an artificial rule of law that, in such a situation, one or other accident must necessarily be selected as the cause of the incapacity, apparently on an entirely arbitrary or capricious basis. And in Australian Eagle Insurance Co. Ltd. v. Federation Insurance Ltd., King J said in reference to the South Australian Workers Compensation Act 1971: If the incapacity results in a true sense from more than one accident, a workman must be entitled to claim compensation in respect of all or any of the relevant accidents. If the accidents occur in the employment of different employers, he must be entitled to claim compensation against each employer. If the accidents occur in the employment of the same employer, he is nevertheless entitled to base his claim upon all or any of the accidents. It was accepted by the High Court in C.E. Heath that the entitlement to receive compensation by weekly payments during incapacity arises separately in respect of each of the injuries which caused or materially contributed to the incapacity. In my view the same principles apply in the present case. The applicant suffered trauma and anxiety as a result of the Voyager collision which led to post traumatic stress syndrome and then to fatty infiltration of the liver. Compensation was payable under the legislative scheme to the applicant in respect of his Voyager injuries until common law damages were recovered in August 1993 in respect of the same injuries. After that occurred the future compensation entitlement of the applicant (if any) in respect of the Voyager injuries was governed by s.99(2) which provided that further compensation is payable only to the extent it exceeds the damages payable. In that way "double dipping" was prevented. However, the applicant suffered further trauma and anxiety as a result of the Evans collision which led to post traumatic stress syndrome and then to fatty infiltration of the liver ("the Evans injuries"). Although the Evans injuries were probably an "aggravation" or "acceleration" of the earlier Voyager injuries, under the legislative scheme they gave rise to a separate and additional entitlement to compensation: see Leech at 445 and C.E. Heath at 421. Although all of the injuries contributed to the incapacity of the applicant which gave rise to his entitlement to payment of compensation, the applicant has always retained a separate entitlement to compensation for incapacity contributed to by the injuries suffered as a result of each collision. The issue of fact that the AAT was required to determine was whether the damages recovered in respect of the injuries caused as a result of the Voyager collision included the injuries in respect of which compensation was payable as a result of the Evans collision. The applicant submitted to the AAT that he was entitled to have compensation payments continued for the Evans injuries notwithstanding his recovery of damages in respect of the Voyager injuries. The respondents disputed that entitlement and submitted that the one and only condition claimed to have been caused to the applicant, being post traumatic stress disorder with resulting fatty infiltration of the liver, was the injury in respect of which damages were recovered. The AAT decision Unfortunately the AAT determined to decide, as a preliminary issue, whether the applicant suffered one or two injuries by reason of the two collisions prior to all of the medical evidence on that subject being adduced. The AAT correctly apprehended that the case the applicant wished to put was that the injuries caused by the Voyager collision only partially incapacitated him for work leaving him with a separate and surviving entitlement to compensation for the additional injuries caused to him by the Evans collision which permanently incapacitated him for work. The applicant's case clearly involves difficult questions of fact and opinion in respect of which expert medical evidence would have to be adduced. However, the AAT concluded that it was able to decide the issue before it on the documents including the medical reports but without the medical evidence the parties proposed to adduce. The AAT's conclusion was: The determination made on 2 December 1987 was made well after both collisions. The diseases, anxiety neurosis with post-traumatic stress syndrome and resultant fatty infiltration of the liver, are such that the Tribunal is satisfied a dividing line cannot be drawn now attributing part of the applicant's disease to one event in the course of his employment and attributing some other part of his diseases to another event. The consequences of the two collisions have merged. The Tribunal finds that the effects are no longer distinguishable. In considering the cost of medical treatment it would be administratively unreasonable to ask a medical practitioner to render separate accounts for a consultation indicating the sum for treatment for fatty infiltration of the liver arising out of the Melbourne\Voyager collision and a sum for treatment for fatty infiltration of the liver arising out of the Melbourne/Evans collision. Similar difficulties would arise in determining the extent of incapacity arising out of each collision. To hear evidence to enable the Tribunal to decide, as the Tribunal did in Re O'Neill, whether the applicant suffered one or two injuries does not remove the fact that the applicant has only one capacity for work for which he is being totally compensated. A claimant may sustain personal injury arising out of, or in the course of, his employment but compensation is only payable in respect of injury in accordance with the relevant legislation, that is in the circumstances of this application, where there has been incapacity for work. To try and attribute his incapacity to separate events would ultimately not vary the compensation paid although, if the Tribunal's decision were to be otherwise, the applicant may have something more in hand now rather than at the end of the preclusion period. Whether a dividing line can be drawn between the consequences of the trauma and anxiety suffered as a result of each collision or whether the consequences had merged so that the damages recovered were in respect of the one injury or one set of injuries is a difficult question of fact dependent on expert medical evidence as was the additional question of the extent of incapacity for work flowing from each injury. The AAT's conclusions suggest that, in focussing on the entitlement to compensation in the context of the one incapacity, the AAT was not addressing the question required under s.99(2). That question was whether the injuries caused as a result of the Voyager collision and in respect of which damages were recovered were the same injuries as that for which compensation was payable under the statutory scheme for injuries caused by the Evans collision. If the question is answered in the affirmative the applicant's claim for continuing compensation must fail until the compensation payable exceeded the damages received. If the question is answered in the negative then the issue which arises is whether any compensation remains payable in accordance with the legislative scheme in respect of the injuries caused by the Evans collision. Whilst only one incapacity giving rise to an entitlement to compensation may have resulted, that incapacity was caused or contributed to by the injuries caused by the two collisions. Section 99 requires attention in the first instance to the injuries rather than the resulting incapacity. The AAT clearly erred in law in determining that the issues were able to be decided by it without the medical evidence the parties proposed to adduce. It may well be that after hearing that evidence the AAT will arrive at the same conclusion. However, these are issues of fact and can only be properly determined after all of the evidence bearing on their resolution is adduced. An alternative way of describing the error of the AAT is that the decision it made on these issues, without all of the medical evidence proposed to be adduced, denied the applicant procedural fairness. It was not submitted that there had been any waiver by the applicant of that entitlement. In summary the AAT erred in law in failing to address the question required under s.99. Alternatively, if it did address and determine the correct question, it erred in doing so prior to the calling of all of the evidence on that issue. Further, the AAT denied the applicant procedural fairness in determining the issues arising under s.99(2) of the 1971 Act without affording the applicant the opportunity of adducing the evidence he wished to adduce in relation to those issues. The respondent submitted that it was open to the AAT to decide these issues without reference to further medical evidence as the damages recovered and the claim for compensation were both in respect of the same medical condition being anxiety neurosis with post traumatic stress syndrome and the resultant fatty infiltration of the liver. Although the submission has superficial attraction, in my view it camouflages rather than discloses the real issue. In workers compensation law the compensation payable to the applicant was for his incapacity for work. As the Voyager and the Evans injuries occurred in the employment of the same employer and each contributed to the incapacity of the applicant for work, there was no need to separately identify the injuries arising from each collision. It was only after the recovery of damages for the Voyager injuries that the issue under s.99(2) arose. That issue required consideration of the injuries caused by the Evans collision. Although the form of the claim and other documents, including the medical reports, are relevant to this issue they cannot be determinative of it until all of the relevant evidence is adduced. Reference was made by counsel for the respondent to several decisions under s.98(1) of the 1971 Act which operated to preclude an entitlement to compensation under the Act if the incapacity in respect of which compensation is claimed is not distinct from or has merged with the incapacity in respect of which a pension has been granted under the Veterans' Entitlement Act 1986: see Australian Telecommunications Commission v. Leech (1982) 44 ALD 441, Commonwealth of Australia v. Keogh (1983) 50 ALR 693 and Re Browne (1988) 14 ALD 705. Section 98(1) prevents "double dipping" in relation to pensions and compensation payable in respect of incapacity resulting from an injury. As was pointed out by Carr J in Telstra Corporation v. Barrow (1994) 19 AAR 523 at 532-4, decisions on the legislative provisions preventing "double dipping" in respect of incapacity resulting from injury are distinguishable from the provisions preventing double dipping in respect of an injury. Davies J pointed out in Secretary, Department of Social Security v. Siviero (1986) 13 FCR 431 at 443 that:

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