Re Margaret Heather Manton v Commonwealth of Australia and Australian Postal Commission [1981] FCA 29 (19 March 1981)

FEDERAL COURT OF AUSTRALIA

Re: MARGARET HEATHER MANTON
And: COMMONWEALTH OF AUSTRALIA and AUSTRALIAN POSTAL COMMISSION
No. N.S.W. G89 of 1980
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Fisher J.
Morling J.

CATCHWORDS

Workers' Compensation - Commonwealth employees - appeal from New South Wales Workers' Compensation Commission - question of law.

Evidence - failure to lay foundation for admission of written statement - treatment of medical evidence referring to inadmissible statement.

Compensation (Commonwealth Government Employees) Act 1971, s.95.

Evidence Act 1898 (N.S.W.), ss.14B, 14CE, 14CF.

Federal Court of Australia Act 1976, s.43.

HEARING

SYDNEY
19:3:1981

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondents' costs of the appeal.

DECISION

This is an appeal pursuant to the provisions of s.95 of the Compensation (Commonwealth Government Employees) Act 1971. The appeal is from a decision of the Workers' Compensation Commission of New South Wales, which is a prescribed court for the purposes of the Act. The Commission affirmed a determination made by the Commissioner for Commonwealth Employees Compensation rejecting a claim for compensation made by the widow of Alan Barry Manton, hereinafter referred to as the deceased, who died on 10 September 1977.

The widow claimed before the Commission that the death of the deceased was the result of personal injury arising out of or in the course of his employment with the Australian Postal Commission, or was the result of contribution by his employment to the contraction, aggravation, acceleration or recurrence of a coronary artery disease which was of long standing duration in the deceased prior to his death.

The facts giving rise to the claim for compensation are fully set out in the careful judgment of the Commission and it will be sufficient for the purposes of disposing of the appeal to refer to the salient facts out of which the claim arises. For some nineteen years prior to his death the deceased had been employed as a mail officer at the Central Mail Exchange at Redfern, and for some time prior to his death he had worked on night shift. He left home for work on the night of 8 September 1977 in apparent good health although he had been attending his family doctor because of pains in the stomach caused by a condition of hiatus hernia. The deceased's work at the Mail Exchange involved him in the handling of bags of mail which, on average, weighed about 60 lbs. but some weighed up to 100 lbs. The mail bags arrived on a belt at the place where he worked and dropped down a chute in front of him. It was part of his work to open bags and tip the contents into a bin for sorting.

At about 11 p.m. on 8 September 1977 the deceased said that he felt bloated and did not feel well. At the end of his shift on the following morning he again complained that he did not feel well and he was observed by a fellow worker to look tired. Although he finished work shortly before 6 a.m. on 9 September, he remained at the Mail Exchange to attend a union meeting. He returned to his home about 10 a.m. and spent the day in bed. He was seen by his wife about 8 p.m. on the night of 9 September and he told her that he did not feel well, and she observed that he looked drawn and tired.

On Saturday, 10 September, he spent the morning at home and left at about 1 p.m. to play cricket. At about 3 p.m. after batting for about 10 minutes and running for a single, he appeared to be out of breath and went down on his haunches. He left the field for about half an hour and then felt well enough to bat again. He walked onto the field and collapsed before resuming his innings. He died shortly thereafter, the causes of death being coronary sclerosis and coronary occlusion.

During the hearing, counsel for the applicant sought to tender a written statement made by one Beck, a fellow employee of the deceased. It had been made at the request of the assistant manager of the Mail Exchange. The statement was originally tendered when the proceedings first came before the Workers' Compensation Commission on 19 November 1979. Reliance was then placed solely on s.14B of the Evidence Act 1898 (N.S.W.) ("the Evidence Act"). Objection was taken to the tender upon the basis that Beck was in Victoria and his whereabouts known and that a subpoena had been issued but not served. The objection was upheld. The hearing of the application resumed on 22 September 1980 when the tender of the statement was renewed. As it is contended on behalf of the appellant that the statement was wrongly rejected when it was re-tendered and that the rejection amounted to such an error of law as warranted the allowance of the appeal, it will be convenient to set out the entirety of the brief evidence relied upon to support the tender. The statement itself was not marked for identification and is not before us. The relevant evidence, which was given by a fellow worker of the deceased, was as follows:

"Q. You and a number of other fellow employees of the late Mr. Manton were requested to make statements by somebody in authority?

A. Yes, the assistant manager.

Q. You made a statement? A. I did, yes.

Q. Everyone that knew anything about the matter as far as you were concerned was asked to make a statement? A. Yes.

Q. Did that include a Mr. Beck? A. Yes.

Q. Was Mr. Beck working there on that night?

A. He was working on that night but he left the department shortly after.

Q. He was one of the persons who to your knowledge made a statement? A. He did, yes."

After this evidence had been given, Counsel renewed the tender of the

statement. He informed the Commission that: "As far as it is known Mr. Beck has now left the country and gone back to England". He sought to tender the statement under the provisions of s.14CE of the Evidence Act as being a document brought into existence as part of the business of the Australian Postal Commission. Objection was again taken to the tender and the objection was upheld upon the basis that the document was not part of a record of the business of the Commission.

Thereafter a medical expert gave evidence on behalf of the applicant. He was asked by Counsel for the applicant to accept the facts proved in evidence before the Workers' Compensation Commission as being the relevant history of the events leading to the death of the deceased. He expressed the opinion that the deceased was a likely subject for a coronary occlusion as his coronary arteries were badly affected with atherosclerosis. He said that exertion by the deceased, even exertion to which he was accustomed, would be likely to precipitate an infarction. Myocardial infarction was found at autopsy and his opinion was that it occurred whilst the deceased was at work. With reference to the deceased's complaint that he felt bloated whilst at work, he said that such a feeling was a common accompaniment of myocardial infarction or coronary occlusion. He said that once the infarction had occurred there was a likelihood of death if the deceased undertook any strenuous activity.

In its case the respondent tendered, without objection, reports from two medical experts. Both experts expressed the opinion that the coronary artery disease which caused the death of the deceased bore no relation to his postal duties. They expressed the view that the deceased's employment did not contribute to the contraction, aggravation, acceleration or recurrence of the condition from which he died. The report of one of the experts referred in terms to the contents of Beck's statement, and it is a fair inference from the other report that its author also had the statement before him when his report was written.

After a consideration of the evidence before him, the learned trial judge held that he was not satisfied on a balance of probabilities that the death of the deceased was a result of personal injury arising out of or in the course of his employment or the result of contribution by his employment to the contraction, aggravation, acceleration or recurrence of the coronary artery disease which was of long standing duration in the deceased. He therefore affirmed the Commissioner's determination.

An appeal to this Court under s.95 of the Compensation (Commonwealth Government Employees) Act lies only on a question of law. Although Counsel for the appellant put his argument in different ways, his basic contention was that the rejection of the tender of Beck's statement was an error of law which entitled the appellant to have her case returned to the Commission for reconsideration.

Although it is not clear that reliance was placed upon s.14B as well as s.14CE of the Evidence Act when Beck's statement was tendered to the Commission on 22 September 1980, we are prepared to deal with the question of admissibility upon the basis that the document ought to have been admitted into evidence if a proper foundation for its admission was laid. But on the evidence we are quite unable to find that such was the case. As to compliance with the requirements of s.14B, all that the appellant can point to is the statement by Counsel that: "As far as is known Mr. Beck has now left the country and gone back to England". We have no doubt that Counsel's statement was accepted without question, but we do not think that the Commission was wrong in failing to accept it as establishing that Beck was overseas and that it was not reasonably practicable to secure his attendance. We are further of the opinion that the statement was not shown to be admissible under s.14CE. To make Beck's statement admissible under that section, it was necessary to show that he was a "qualified person" - para.14CE(6)(a). For relevant purposes, this required the appellant to show that Beck was employed at the Mail Exchange at the time when the statement was made. There was no evidence that such was the case. Beck left his employment shortly after the night of 8 September 1977 and from all that appears from the evidence the statement may well have been taken from him some considerable time after he gave up his employment at the Mail Exchange.

There are other difficulties standing in the way of the appellant. All that was proved as to the circumstances in which the statement was made was that it was made at the request of somebody in authority. From this meagre evidence it is not possible to find affirmatively that the statement, even if made by a "qualified person", was otherwise admissible under the section. As we have said, the statement is not before us and it cannot be deduced from the evidence whether it forms part of a record of the Australian Postal Commission's business or was made in the course of, or for the purposes of, that business. It is a serious question whether a statement taken from a person who is a servant in a business, at some time after the events referred to in the statement, forms part of a record of that business for the purposes of sub-s.14CE(4). We think it probably does not, and that the trial judge was correct in rejecting Beck's statement upon that ground. But it is unnecessary to determine that question for the purpose of disposing of the appeal. Further, the statement may well have been made in contemplation of legal proceedings and thus have been rendered inadmissible by virtue of sub-s.14CF(1) of the Evidence Act. We are mindful of the benefits to the administration of justice which flow from Part IIC of the Evidence Act dealing with the admissibility of business records, but a party relying upon the Part must lay the necessary evidentiary foundation for its application.

Even if we had come to the view that Beck's statement ought to have been admitted, it would not have followed that the appeal would have succeeded. The trial judge, who presumably had the benefit of seeing Beck's statement, was of the view that the opinion expressed by the applicant's medical expert did not depend upon the contents of the statement. A reading of all the evidence leaves us with the firm conviction that even if the statement had been admitted into evidence the widow's application would have met the same fate. In these circumstances, it would have been inappropriate to send the matter back for a new hearing. See Dairy Farmers Co-operative Milk Company Limited v. Acquilina [1963] HCA 59; (1963) 109 C.L.R. 458 at p.463.

It was submitted that as the medical reports tendered on behalf of the respondents made reference to Beck's statement, and as the statement was not admitted into evidence, the foundation upon which the reports were based substantially disappeared. It was argued that, accordingly, the Commission erred in attaching any weight to the opinions expressed in those reports. We do not think this submission has any substance. Beck's statement was in no sense the foundation, or even part of the foundation, for the opinions expressed in the reports.

It would have been a matter of concern to us had we been of the view that the widow's case before the Commission was prejudiced by the rejection of Beck's statement. We are satisfied that this was not the case. The applicant was competently represented and the contents of the statement could have been elicited in cross-examination of the respondents' medical experts who referred to it in their reports. She also had the opportunity of calling her own expert in reply. She did not avail herself of these opportunities, and probably for good reasons. The view may well have been taken that there was no point in cross-examination to elicit the full terms of the statement because the most relevant parts of it were sufficiently referred to in the reports of the respondents' experts. Further, the failure to call the applicant's expert in reply may well have been occasioned by the belief that there was nothing in Beck's statement which would have caused him to add anything to his earlier testimony.

It is true that, if the statement had been admitted in evidence, it would have been probative of the facts stated in it and, to this extent, a different situation would have arisen (cf. Ramsay v. Watson [1961] HCA 65; (1961) 108 C.L.R. 642 at pp.647- 649). But even on this basis the facts in the statement would still not be the foundation or even part of the foundation of the opinions of the respondents' experts; the opinion of the applicant's expert would have remained unchanged. It might be argued those facts would have furnished some support for the opinion of the applicant's expert, but, as we have indicated, we consider the widow's application would still have met the same fate.

In the result, the appeal should be dismissed. The Compensation (Commonwealth Government Employees) Act 1971 provides in s.93 that a prescribed court may order an unsuccessful applicant to pay costs. The Commission, when the present case was before it, decided that there be no order as to costs. Section 95 of that Act, which confers jurisdiction on this Court to hear the appeal on a question of law from the Commission, is silent on the question of costs. However, the Federal Court of Australia Act 1976, s.43, confers jurisdiction to award costs in all proceedings before the Court, other than proceedings in respect of which any other Act provides that costs shall not be awarded. We see no reason why costs on such appeals in this Court should not ordinarily follow the event as was the case in Clarke v. Australian Broadcasting Commission, 28 October 1980, Keely J. We would propose that the appellant pay the respondents' costs of the appeal.