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[2004] FCA 1404
Federal Court of Australia
2004-10-29
Bennett J
Original judgment source is linked above.
The application of the principle in Forst 29 A further ground relied upon by Telstra is that the Tribunal wrongly applied Adelaide Stevedoring & Co Pty Ltd v Forst (1940) 64 CLR 538 ('Forst') in applying 'a presumption that flows from the natural sequence of events' to find that 'given [Mr Mahon's] already damaged right knee, it is difficult, given the circumstances of the accident, not to accept that some additional damage was caused to that knee'. 30 Mr Watson submits that Forst is only consistent with a proposition that, where medical science cannot supply an answer, a Court could adopt a view on causation arising from the presumption. The respondent submits that the High Court acknowledged in Forst that, if medicine did provide an answer, the presumption would be displaced. Further, it is submitted, the Tribunal substituted that inference for contrary medical evidence. The respondent points to the rationale approved by Rich ACJ in Forst (at 563) which the Tribunal was entitled to adopt and apply namely 'a course of reasoning which combined common sense with the application of logic to physiological facts to infer "on the preponderance of probabilities"…'. 31 Mr Watson's submissions on Forst seem to be based on the premise that there was no medical evidence that justified a conclusion of aggravated damage. He submitted that the presumption referred to in Forst can only be applied in the absence of a reason supplied by medical evidence. It was submitted that a lay presumption cannot apply when medical and scientific reasoning offers another explanation. In support of the submission that the application of Forst was an error of law, Mr Watson points to [36] of the Tribunal's reasons where the Tribunal accepted medical evidence that the fall on 21 January 1997 'was insufficient to explain [Mr Mahon's] current symptoms'. The proposed error of law is, therefore, based on the assumption that [36] is referring to the right knee and that the medical evidence referred to in that paragraph is the totality of the evidence on that subject. In paragraph [34], where the subject of consideration is clearly the right knee and where Forst is referred to, the presumption applied is consistent with the medical evidence that the January injury did contribute to the current degenerative state of Mr Mahon's right knee. As I am of the view that, on a proper reading of the decision, the Tribunal was not referring to the right knee in [36] but was referring to it in [34], medical evidence and the lay presumption of Forst coincided. 32 In its decision, the Tribunal was faced with competing medical opinions as to whether the January injury contributed to the current degenerative state of Mr Mahon's right knee. As a finding of fact, it accepted one set of opinions. It gave, as a reason for its finding of fact, that the medical opinion which it accepted accorded with a presumption that some additional damage was caused by the events of 21 January 1997. There was evidence that, at or about the time of the injury, Mr Mahon's right knee was degenerative, irrespective of the reason for that pre-injury state and the Tribunal was entitled to accept that evidence. In my opinion, there was no error of law demonstrated in that conclusion, nor was Forst misapplied. Medicine did not displace the presumption; medical opinion was divided but there was medical opinion consistent with the presumption that the Tribunal was entitled to accept for the reason that it gave. There was no error of law.
Did the Tribunal err in failing to find a percentage of permanent impairment due to the January injury? 33 The Tribunal found that Mr Mahon's claimed history, alleging prior work-related injury to his knee, was incorrect and that Mr Mahon was not a credible witness. On a proper reading of the Tribunal decision, the Senior Member found that, irrespective of the cause of the pre-existing injury to the right knee, the injury of 21 January 1997 aggravated the problems with that knee. So much was accepted by Mr Watson. The next question was whether the Tribunal failed to make a finding as to whether the additional damage caused was permanent and, if it was permanent, what was the percentage of permanent impairment attributable to the January injury. 34 The Tribunal accepted the opinion of Dr Glase that Mr Mahon suffered a permanent percentage of impairment to his right knee at 10 per cent. The Tribunal accepted that Mr Mahon had not given a correct history with respect to his right knee but accepted that the January work-related injury aggravated the pre-existing injury whatever the cause of that pre-existing injury. Despite the fact that Dr Glase did not have a correct history, the Tribunal accepted Dr Glase's assessment of 'permanent percentage impairment… due to the work accident at 10%' (emphasis added). I cannot see how that objective assessment of the degree of current impairment attributable to the accepted work-related injury is infected by the incorrect history given to that doctor. The incorrect history related mainly to Mr Mahon's pre-existing injury. The question was the condition of the knee as at the date of the work-related injury. The Tribunal was clearly alive to the credit issues surrounding Mr Mahon's medical history and accepted Dr Glase's opinion on the matter of percentage impairment. It was a finding of fact which was open to the Tribunal, and for which reasons were given. No error of law has been established.
Notice of contention 35 The respondent filed a notice of contention. As relied upon at the hearing, the issues that were raised were whether the Tribunal erred in considering for review the question of injuries to Mr Mahon's arms and back and whether Telstra and the Tribunal were estoppel from a reconsideration of Mr Mahon's injury after he had made an election pursuant to s 44 and s 45 of the SRC Act.
Was the Tribunal entitled to consider the effect on Mr Mahon's forearms and lower back? 36 Despite the way in which the matter proceeded before the Tribunal, an issue was raised by Mr Edwards of counsel who appeared for Mr Mahon as to whether the Tribunal was entitled to consider the effect on Mr Mahon's arms or back or whether it was, by reason of the form of the revocation of the November determination, restricted to the question of the right knee. This is not properly the subject of a notice of contention as it seeks different orders than those made by the Tribunal. However, given that the respondent did not seek to file a notice of cross- appeal, I will treat it as a notice of contention which seeks merely to contend that a matter was decided erroneously against the respondent but does not seek orders discharging or varying the Tribunal's decision. 37 In any event, upon analysis, it is apparent that the November determination dealt with the forearms and lower back as well as the right knee. Accordingly, the revocation of the November determination by paragraph 1 of the reconsideration, the subject of the appeal to the Tribunal as set out in [4] herein, was in respect of all three conditions. Mr Edwards relied upon paragraph 2 to limit paragraph 1 in some way. However, he conceded that, if paragraph 1 stood alone, the Tribunal would be entitled to address all three conditions. In my opinion the additional comment about the right knee in paragraph 2 does not affect the subject matter of the reconsideration. The Tribunal was entitled to address the right knee, the forearms and the lower back.
Estoppel by conduct 38 Mr Edwards submitted that, once a finding of permanent impairment has been made under s 24 of the SRC Act, by reason of the irrevocable election by Mr Mahon to accept the offer of payment under s45 of the SRC Act which precludes the taking of a common law action, Telstra is estopped from reconsidering the permanent impairment. 39 It is not clear whether this matter was canvassed before the Tribunal or not. If it was, it was dismissed by the Senior Member without detailed consideration. 40 By reason of s 44 of the SRC Act, subject to s 45, an action or other proceeding for damages does not lie in respect of the January injury. There is no right to bring a common law action, subject to the exception in s 45 which provides for a limited right to claim damages for non-economic loss. Section 45 gave to Mr Mahon an election to commence proceedings for non-economic loss prior to payment of compensation. That election is irrevocable and compensation by lump sum payment would then not have been payable under s24 of the SRC Act in respect of the January injury. The failure to make such an election may, logically, be for a number of reasons and it does not necessarily result in detriment. By letter of 15 October 1998 ('the letter') Telstra notified Mr Mahon of the amount of the lump sum payable. Mr Mahon then made an election. There is no evidence of detriment or of the reason for the election. 41 In the letter, Telstra stated the amount calculated as his entitlement by lump sum payment for permanent impairment and non-economic loss. The letter also referred to s 45 of the SRC Act and the election to be made by him. An accompanying form provided, in blank, for two alternatives: to receive compensation under the SRC Act or to institute an action for non-economic loss. It also referred to the fact that the election was irrevocable. There was provision for Mr Mahon's signature. That signed form was returned to Telstra by Mr Mahon's solicitors. The election was to receive compensation under the SRC Act. 42 Mr Edwards characterises this process as a representation by Telstra that it accepts the January injury and that it accepts Mr Mahon's permanent impairment as set out in the determination accompanying the letter. By electing to accept the payment and forego his right to commence an action for non-economic loss, it is said that Mr Mahon relied upon that representation to his detriment so that Telstra is estopped from reconsidering either the January injury or the fact of or degree of permanent impairment. 43 Mr Watson submits that the letter, in blank form, referring to two alternatives and an election to be made, does not constitute a representation. He also points out that there is no evidence to support inducement or any reliance or, indeed, detriment and that there are many possible reasons for the election made. 44 Section 62 of the SRC Act provides for an unfettered discretion on the part of Telstra to reconsider a determination made by it. Mr Edwards concedes that such a statutory discretion enables reconsideration but submits that common law estoppel can override s 62 of the SRC Act. Mr Watson submits to the contrary. 45 Section 62 of the SRC Act provides that a determining authority (Telstra) may, on its own motion, reconsider a determination made by it or cause such a determination to be reconsidered. That determination may result in a decision affirming or revoking the determination or varying it in such a manner as the person making the determination thinks fit. In Brickworks Ltd v Council of the Shire of Warringah (1963) 108 CLR 568 at 577, Windeyer J said that estoppel by representation cannot prevent the performance of a statutory duty or the exercise of statutory discretion (see also, Attorney-General (NSW) v Quin (1990) 179 CLR 1 at 18. The operation of an estoppel 'may cut across the proper exercise of the discretion reposed by legislation in a specified decision-maker and thus be at odds with what is mandated by the legislation' (Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125 per Davies and Gummow JJ). There may be an element of ambiguity in this remark (see, for example: Bramwell v Repatriation Commission (1998) 158 ALR 623 per Weinberg J at 636). 46 Mr Edwards submits that, despite s 62 of the SRC Act, Telstra cannot reconsider the injury or the permanent incapacity arising from the injury because of the lump sum determination made in accordance s 24 and the irrevocable election made by Mr Mahon to give away a common law action for non-economic loss. Mr Edwards argues that, otherwise, s 62 authorises reconsideration of any issue, including the injury and the permanent nature of any impairment. Mr Edwards concedes that, if the statutory scheme is discretionary, estoppel cannot operate as asserted. Mr Edwards seeks to distinguish the principle described in Formosa, which he contended is authority for the proposition that estoppel is not available in respect of the exercise of a discretionary power, on the basis that, here, the power is not discretionary but determinative (see Formosa at 125). 47 In this case, the reconsideration by the determining authority was on its own motion. Section 62(1) of the SRC Act provides: 'A determining authority may, on its own motion: (a) reconsider a determination made by it; or (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.' In my view, the power given to the determining authority by s 62, the power to reconsider, is discretionary. The reasoning in Formosa, as advanced by Mr Edwards, applies. 48 Even if estoppel were available and the letter did constitute a representation that Telstra irrevocably accepted Mr Mahon's entitlement to payment for whole person impairment which I doubt, evidence would be necessary of reliance in the making of an election and consequential detriment. There was no such evidence. It is by no means clear that the election has in fact resulted in detriment. 49 Further, the matter referred to the Tribunal was the November determination, made under s 62 of the SRC Act. That determination dealt with each of the three claimed medical conditions. That was the reviewable decision for the purposes of s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal was then able to exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision. Sackville J observed in Power v Comcare (1998) 89 FCR 514 at 526 that the reconsideration decision-maker, for the purposes of s 62 of the SRC Act, had the power to consider whether the condition for which it was claimed there was a continuing liability on the part of the respondent to compensate the applicant, had ever been causally related to his work. The reconsideration decision-maker was not bound by any issue estoppel arising from an earlier determination and the Tribunal was in a similar position. That reasoning applies in this case. 50 For the above reasons, I do not accept that Telstra or the Tribunal were bound by an estoppel from reconsidering the question of permanent impairment resulting from the January injury.
Conclusion 51 The applicant has not demonstrated an error of law of the part of the Tribunal. The respondent has not established the grounds of the notice of contention. It follows that the application is dismissed. I have dealt with the assertions and claims set out in the notice of contention. As stated above, while in substance the respondent's notice of contention appeared to seek particular orders, and was in this way more akin to a cross-appeal, it has not been filed as a cross-appeal. Accordingly, it is unnecessary for me to make any orders in respect of it. I will hear the parties as to costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
Counsel for the Applicant: G Watson SC with B Kelly
Telstra Corporation Limited
Mahon
Were reasons given for the finding of entitlement to compensation for injury to the right knee? 20 Telstra's complaint is that it lost the case before the Tribunal, despite the Tribunal making a number of findings against Mr Mahon. The submission is that, having made these findings, the Tribunal had no alternative but to reject all aspects of Mr Mahon's claim. Instead, the Tribunal came to the conclusion that Mr Mahon was entitled to compensation under the SRC Act. It is submitted that the Tribunal gave no reasons to explain that conclusion. 21 In my opinion, that is not the case. The Tribunal clearly rejected Mr Mahon's version of earlier work-related injuries which were exacerbated by the January injury. That is, the Tribunal accepted that a false history had been given. It did accept, however, at [34] that, irrespective of the cause of the pre-existing problems with the right knee, these problems had been aggravated by the work-related injury and that the percentage of impairment due to the January injury was 10 per cent. In coming to this conclusion, the Tribunal relied on Dr Dalton's evidence and the conclusions of other medical practitioners which were consistent with those of Dr Dalton or whose opinion the Tribunal accepted. The Tribunal was entitled to make those findings of fact on the evidence before it. In accepting such opinion the Tribunal was evidently aware of the history given, as set out in the Tribunal's reasons. 22 The Tribunal then turned at [35] to the claimed injury to the wrists and forearms. It accepted the evidence of those neurologists who regarded the work accident as the cause of injury. No error of law is apparent in this finding. 23 Telstra's submissions focussed on paragraphs [36] and [37] of the Tribunal's decision. 24 It is here that the parties are most in issue. Telstra contends that [36] is part of the Tribunal's consideration of the right knee. In [36], the Tribunal found that the January injury was insufficient to explain Mr Mahon's "current symptoms". On the basis that this finding was about the right knee, the Tribunal, it is said, failed to give reasons for its conclusion that Mr Mahon was entitled to payment in respect to that knee. A failure to give reasons would be an error of law. It is true that in [36] the Tribunal does not expressly mention any injury to Mr Mahon's back. It does not refer to any part of the body. 25 The submission by Mr Edward is relatively straightforward: [36] was dealing with the back injury, the third aspect of the claim even though there is no specific reference to the back in that paragraph. The Tribunal had already dealt with the right knee (in favour of Mr Mahon) and the arms (in favour of Mr Mahon) and then dealt with the third claimed impairment, the back, as to which Mr Mahon was unsuccessful. This, it is submitted, explains why in [37] the Tribunal decided that there should be payment of compensation only for the knee and the arms. 26 I accept that at [36] the Tribunal was dealing with the claim for the back. The Tribunal was clearly aware that the back was in issue and dealt with medical reports on that subject. The structure of the judgment is that the Tribunal first dealt with the evidence and then turned to its conclusion. Paragraph [34] dealt explicitly with the knee and [35] dealt with the arms. The choice with respect to [36] is that the Tribunal returned to a further consideration of the knee or that it addressed the remaining issue of the back. If the reasons are read so as to deal with the knee (10 per cent impairment due to the work accident), arms (caused by the work accident) and back (work accident insufficient to explain the current symptoms), each of the claims is dealt with and there is consistency with the decision in [37] as to entitlement to compensation (knee and arms only). It is hard to see why the Tribunal would deal with the knee, then the arms, then return to the subject of the knee and ignore the complaints about the back. It is more likely that the Tribunal then turned to deal with the back. 27 I am faced with two alternative constructions of the Tribunal decision. The first is that the decision is, by reason of [34] and [36], internally inconsistent and that, assuming that both paragraphs are dealing with Mr Mahon's right knee, and that the conclusion by the Tribunal at [37] is made without reasons. The second is that the Tribunal was dealing with three matters: the right knee, the wrists and forearms and the back. It dealt with them sequentially: the right knee [34], the wrists and forearms [35] and the back [36]. The conclusion at [37] is then consistent with the conclusions in those paragraphs and reasons have been given for those findings. 28 Courts should not over-scrutinise Tribunal decisions. In (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ('Wu Shan Liang'), Brennan CJ, Toohey, McHugh and Gummow JJ said at 279: '. the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616).´ See also,Repatriation Commission v Crane [2004] FCAFC 86; Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63 at [89]: 'the delegate´s reasons must be given a beneficial construction'. The form of the Tribunal's reasons lends itself easily to Mr Edward's interpretation. It is apparent to me that the second construction of the Tribunal's decision is sensible, clear and preferable. Accordingly, there is no error of law.
(1940) 64 CLR 538
(1990) 179 CLR 1
(1998) 158 ALR 623
(1963) 108 CLR 568
(1988) 46 FCR 117
(1996) 185 CLR 259
(1998) 89 FCR 514