Smith v Caltex Australia Petroleum Pty Limited

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Appeals Tribunal ('the Tribunal') given on 8 December 2003 in a proceeding under s 88(1) of the Seafarers Rehabilitation and Compensation Act 1992 ('the Act'), whereby it affirmed the decision of the respondent disallowing a claim for compensation made by the applicant. The claim in question was made under cover of a letter dated 31 July 2001 from the applicant's solicitors. It sought compensation for an injury, which happened on 19 September 1985 in the course of the applicant's employment on board the respondent's ship 'W.M. Leonard', resulting in partial incapacity for the period occurring after 26 October 1998. The Tribunal found that on 19 September 1985 the applicant did suffer an injury, which it described as 'a muscular strain of the thoracic spine'. However, it also found that, before the applicant recommenced work on 8 February 1989, 'the effects of [that] incident had ceased'. These key findings of the Tribunal are challenged by the applicant in the questions of law stated in his notice of appeal. 2 In order to explain how those questions can be said to arise on this appeal, I shall begin by describing aspects of the processing of the applicant's claim by the respondent and the nature of the evidence before the respondent when it made its decision disallowing the applicant's claim. That claim was supported by a medical certificate dated 16 March 2001 from a general practitioner, Dr Harry Jarvis, stating that the applicant was suffering from thoracic and chest pain caused by the incident on 19 September 1985. The first thing that the respondent appears to have done was to require the applicant, pursuant to s 66(1) of the Act, to undergo a medical examination by a surgeon, Dr Peter Burke, on 31 October 2001. The respondent rested its original determination that it was not liable to pay the compensation sought by the applicant on the report prepared by Dr Burke following that examination. When the applicant's solicitors requested the respondent to reconsider its determination, they advanced essentially two reasons. First, it was contended that Dr Burke's opinion contradicted findings made on 1 April 1992 by a District Court Judge and that the respondent was 'estopped' from disputing those findings. Secondly, the applicant's solicitors baldly stated, without any amplification, that the 'findings of Dr Peter J Burke contradict the opinions of Mr Smith's treating doctors.' (The respondent's solicitors responded straightaway to the estoppel point, expressing their own view that any 'District Court findings' could have no application to periods occurring after the date on which they were made.) In any event, the respondent put in train the statutory arrangements with Comcare for a Comcare officer to assist it in reconsidering the determination. The Comcare officer recommended that the original determination be affirmed, and the respondent made a decision to that effect on 31 March 2002. 3 An application for review of that decision was lodged with the Tribunal on 9 May 2002. This obliged the respondent to prepare a statement pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ('the AAT Act'). Copies of that statement and the so-called 'T' documents are included in the appeal papers. These documents include the findings that the applicant's solicitors alleged gave rise to an issue estoppel. They were made in proceedings for compensation under the Seamen's Compensation Act 1911 ('the repealed Act'). Those proceedings involved two distinct claims for compensation by the applicant, one against the Australian National Line ('the ANL') in respect of an accident on one of its ships on 25 July 1983 and the other against the respondent in respect of the accident on the ship 'W.M. Leonard' on 19 September 1985. Questions as to the liability to pay compensation, as to the amount and duration of compensation, and as to 'contribution' between the ANL and the respondent were settled by arbitration before a judge of the District Court of New South Wales (McCredie DCJ) on 1 April 1992. His Honour made an award finding that (1) on 25 July 1983 in the course of his employment with the ANL the applicant sustained an injury to his thoracic spine and chest and was thereafter either totally or partially incapacitated for work for various periods, (2) on 19 September 1985 in the course of his employment with the respondent the applicant sustained an injury to his thoracic spine and chest and was thereafter totally incapacitated until 11 September 1987, (3) as a result of the injuries sustained on 25 July 1983 and 19 September 1985 the applicant was totally incapacitated for work from 12 September 1987 until 6 February 1989 and had been partially incapacitated for work from 8 February 1989 to date, and (4) the incapacity of the applicant for employment since 7 February 1989 had been caused in the proportion of 60 per cent by the injury occasioned in the employ of the ANL and 40 per cent by the injury sustained in the employ of the respondent. His Honour also made an order in the award that the two employers make weekly payments of compensation for periods from 12 September 1987 up until 22 August 1991. (The respondent had claimed weekly payments to the date of arbitration in respect of partial incapacity.) 4 Reports from doctors who treated the applicant prior to the arbitration by McCredie DCJ were included in the 'T' documents. These doctors were his general practitioner Dr John Alam, an orthopaedic surgeon Dr Thomas Claffey, the visiting medical officer at Gladstone Hospital Dr David Allen, a cardiologist Dr Andrew Hickey and a neurosurgeon Dr John Sheehy. 5 The s 37 statement also referred to a claim for compensation under the Act that the applicant had made against another employer ('Stolt'). This claim related to a 'left thoracic cervical back injury' sustained on 26 October 1998, for which Stolt had determined it would not pay compensation after 5 February 1999. That determination had been the subject of an earlier application for review in Tribunal proceeding N 1999/551. The respondent included in the 'T' documents in the present case all the 'T' documents from that proceeding together with a copy of the decision made by the Tribunal on 26 October 1999 in accordance with s 42C(2) of the AAT Act affirming Stolt's determination. Those 'T' documents included certificates from a series of general practitioners covering periods from 9 April 1996 to 18 June 1996 and from 29 October 1998 to 28 February 1999, a short report from Dr Sheehy following a consultation on 4 January 1999, reports from medico-legal examinations arranged by Stolt, and reports from four different radiologists. 6 Against that backdrop of the evidence before the respondent and of the documents considered by it to be relevant to the review by the Tribunal in the present case, I now turn to that review. On 13 March 2003 the Tribunal held a hearing at which both parties were represented by counsel. Counsel for the applicant tendered a number of reports by doctors who had treated his client. These included reports by Dr Claffey of an examination on 1 March 1985 and of a manipulation of the thoracic spine on 10 April 1985. (The reports from Dr Claffey in the 'T' documents already covered the period from 24 June 1983 to 31 January 1986. They show that Dr Claffey had suggested to Dr Alam that an independent second orthopaedic opinion be obtained, and Dr Alam had apparently referred the applicant to Dr John Collins for this purpose). A medico-legal report dated 2 July 1986 by Dr Collins was also included in the tender together with several reports of Dr Sheehy. (Two of these reports dealt with matters already covered in a medico-legal report from Dr Sheehy in the 'T' documents, another covered an examination on 15 February 1999, and the final one was a report to the applicant's solicitors following a medico-legal examination arranged by them on 14 November 2002.) A report dated 1 November 2002 by Dr Jarvis was the only other report by a treating doctor amongst the medical reports tendered by counsel for the applicant, which otherwise comprised reports from medico-legal examiners arranged by the ANL on 22 October 1984 and 1 February 1985 and by Stolt on 8 December 1998. Counsel for the respondent tendered four reports by Dr Burke, three of which were prepared prior to the arbitration by McCredie DCJ and one of which reported on an examination of the applicant on 2 December 2002. Counsel for the applicant objected to the reception of this evidence and of the report of 31 October 2001 (which was included in the 'T' documents) on the ground that the opinion expressed by Dr Burke was not posited upon an acceptance of McCredie DCJ's findings. The Tribunal determined to receive the reports of Dr Burke. Finally, counsel for the respondent tendered the heads of agreement signed on 26 October 1999 by the applicant and on behalf of Stolt in Tribunal proceeding N 1999/551 together with a deed of release between those parties signed by the applicant on 16 November 1999. (These documents reveal that the applicant was paid $50,000 in settlement of all his claims for compensation against Stolt.) The applicant and Dr Burke also gave oral evidence.