Re Australian Telecommunications Commission v Shirley Else Barker [1990] FCA 489; 12 Aar 490 (7 December 1990)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN TELECOMMUNICATIONS COMMISSION
And: SHIRLEY ELSE BARKER
No. G220 of 1990
FED No. 700
Administrative Law
[1990] FCA 489; 12 AAR 490

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Gummow(1) and Hill(1) JJ.

CATCHWORDS

Administrative Law - Compensation (Commonwealth Government Employees) Act 1971 (Cth) - Administrative Appeals Tribunal affirmed a determination that the respondent not liable to pay compensation to the appellant - whether Tribunal failed to state reasons for its decision - whether error of law - trial judge found that appellant entitled to compensation - whether finding open on the evidence before the Tribunal - causation and onus of proof in administrative proceedings discussed.

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

HEARING

SYDNEY
7:12:1990

Counsel for the appellant: Mr D.M. Bennett QC and Mr M.B. Smith

Solicitors for the appellant: Hunt and Hunt

Counsel for the respondent: Mr J. Anderson

Solicitors for the respondent: Steve Masselos and Co.

ORDER

The appeal be allowed.

Paragraphs 3, 4 and 5 of the orders made by the trial Judge be set aside and, in lieu thereof, the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without the hearing of further evidence.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an appeal from a judgment of a single judge of the Court on an appeal from the Administrative Appeals Tribunal ("the Tribunal") in which the Tribunal affirmed a decision of a delegate of the Commissioner for Employees' Compensation that the Australian Telecommunications Commission ("Telecom") was not liable to pay compensation to the applicant, Mrs S.E. Barker, on and from 29 October 1987. The learned trial Judge held that certain findings of fact of the Tribunal did not have a legal and evidentiary basis. His Honour set aside the conclusions and orders of the Tribunal. His Honour then went on to substitute therefor certain findings which favoured Mrs Barker's entitlement to compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 which his Honour considered necessarily flowed from findings of fact made by the Tribunal and from the evidence given.

2. Mrs Barker had been employed by Telecom. On 16 February 1981, she had struck the outside of her right elbow on a piece of equipment. On 18 March 1981, her right elbow was struck again, this time by a heavy door. Mrs Barker experienced pain in the elbow down through the arm extending into the fingers of the right hand and subsequently saw her local general practitioner. She was given a certificate to remain off work for two weeks. As the elbow remained sore and as Mrs Barker had pins and needles and swelling in her fingers, the practitioner arranged for Mrs Barker to see Dr G. Mahony, an orthopaedic surgeon. Dr Mahony diagnosed a right lateral epicondylitis and treated this condition by injecting anaesthetic and cortisone.

3. Subsequently, on 28 May 1981, Dr Mahony reported tenderness on palpating the medial epicondyle area and that "Mrs Barker does appear to have developed added symptoms referrable to her right medial epicondylitis." Again, as on the earlier consultations, Dr Mahony treated Mrs Barker with local anaesthetic and cortisone injections. On 3 June 1981, Dr Mahony immobilised the elbow in plaster. As the pain did not diminish, Dr Mahony operated on 31 July 1981. However, Mrs Barker's symptoms did not resolve, notwithstanding further treatment including physiotherapy and operations involving the right ulnar nerve.

4. A crucial paragraph in the Tribunal's reasons for decision read as follows:
"32. Having regard to the medical evidence called by

both parties, I find it impossible to say what caused the
Applicant's current condition, be it right medial
epicondylitis alone, or subsisting with a right ulna
nerve neuritis. However, I do find that I am
affirmatively satisfied that the Applicant's current
conditions, both physiological or psychological, were not
caused by the blow to the elbow on 18 March 1981, either
alone or in conjunction with that blow sustained on 16
February 1981."

5. With respect to this finding, the trial Judge said:-

"What medical condition an applicant has and whether a
medical condition results from an employment injury, are
of course questions of fact, and matters of this kind are
for the Tribunal, not me. However, to be valid, such
conclusions must be arrived at judicially and have a
legal and evidentiary basis. Although seemingly
disowning a positive finding on what the applicant's
current condition was, the Tribunal appears in substance
to have first defined the injury as medial epicondylitis,
either alone or jointly with the ulnar neuritis. If this
represents the Tribunal's finding of fact, there is, as
far as I can see, no evidence that either of these
organic conditions resulted or could have resulted from
anything other than the particular employment incident(s)
relied on or treatment reasonably undertaken thereafter,
or both."

However, his Honour was not correct when he spoke in that last sentence of "no evidence". There was such evidence, though it was not referred to in the Tribunal's reasons for decision.

6. We agree with the trial Judge that the Tribunal's decision should be set aside for error of law; but that error appears to us to lie in the lack of reasons given for the Tribunal's finding that it was affirmatively satisfied that the applicant's current condition was not employment related. The Tribunal failed to state reasons for that conclusion, to expose its reasoning process. It is an error of law for a tribunal, which is bound to state reasons for its decision, to fail to express findings and reasons for decision adequate for the purpose of enabling a proper understanding of the basis on which a decision has been reached. See Dornan and Ors v. Riordan and Ors (1990) 95 ALR 451 at 460-461 and the authorities therein referred to.

7. The Tribunal may have changed course at the last moment. The Tribunal described the history of Mrs Barker's complaints and dealt with the blows to the elbow which she had received at work and with the treatment by Dr Mahony. Having recited this evidence, which would lead one to think that the Tribunal was considering only two causes of the injury, namely the events at work and the treatment received, the Tribunal went on to refer to and deal with the case put by Mr Matthew Smith, counsel for Telecom, namely that the ministrations of Dr Mahony constituted a novus actus interveniens and thus that Telecom was not liable for Mrs Barker's condition. The Tribunal rejected that contention stating:-

"In this case I am not able to find
affirmatively and as a matter of fact, as opposed to suspicion
or conjecture, that Mr Mahony's injudicious surgical
interventions and other treatments resulted in the Applicant's
current condition."

8. The Tribunal then considered what the position would be if the Tribunal were unable to make a positive finding on the connection between employment and Mrs Barker's condition. The Tribunal referred to Commonwealth of Australia v. Muratore [1978] HCA 47; (1978) 141 CLR 296, McDonald v. Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6 and Re Twyman and Commonwealth of Australia (1987) 13 ALD 402 and concluded that the status quo should remain unchanged unless the evidence established that it should be changed. The Tribunal considered that the effective decision under review was a decision to cancel payment of workers' compensation with effect on and from 29 October 1987 after payments had been made from 14 May 1981 to that date and thus that payments should continue to be made unless the Tribunal was satisfied that the evidence persuaded the Tribunal to the contrary.

9. The Tribunal discussed aspects of proof and considered Adelaide Stevedoring Company Ltd v. Forst [1940] HCA 45; (1940) 64 CLR 538; Tubemakers of Australia v. Fernandez (1976) 10 ALR 303 and Australian Iron and Steel Limited v. Connell [1959] HCA 54; (1959) 102 CLR 522.

10. All this discussion led up to the Tribunal's finding in paragraph 32 that it could not determine what caused the applicant's current condition.

11. The Tribunal's reasons for decision to the end of the first sentence in paragraph 32 therefore point to a finding in favour of Mrs Barker on the basis taken by the Tribunal as to the applicability of the authorities.

12. In the second sentence of paragraph 32, the Tribunal expressed itself to be affirmatively satisfied that Mrs Barker's condition was not caused by the injuries at work. This finding stands on its own unsupported by the previous discussion of novus actus interveniens, status quo and proof in relation to medico-legal problems. That earlier discussion over many paragraphs does not show any reason for the ultimate finding, which stands on its own without reasons. It is true that relevant evidence was referred to; but that evidence left the question open. In the absence of reasons explaining why the Tribunal came to that crucial finding, the Tribunal's decision was correctly set aside for error of law.

13. The trial judge held that, in the light of the facts referred to by the Tribunal and the Tribunal's finding that it was not satisfied that Mrs Barker's findings were caused by injudicious treatment by Dr Mahony, the only reasonable conclusion was that Mrs Barker's condition arose out of the events at work or reasonable medical treatment she had thereafter received and that therefore she was entitled to compensation. However, on the whole of the evidence before the Tribunal, the issue was an open one and differing views could validly be arrived at. Accordingly, it would not be right to act on the basis of one of the findings made in the reasons for decision of the Tribunal while rejecting another. The matter should be remitted for rehearing so that the matter can be argued afresh and new evidence adduced if that is thought desirable. His Honour's orders should be varied accordingly.

14. We should comment on some aspects of the Tribunal's reasons which may have contributed to bring about error.

15. First, in its discussion of novus actus interveniens, the Tribunal questioned whether "Mr Mahony's injudicious surgical interventions and other treatments resulted in the applicant's current condition." However, the Tribunal did not in terms make the point that, if a worker reasonably acts in seeking or accepting medical treatment, negligence in the administration of the treatment will not ordinarily constitute a novus actus interveniens, though treatment or advice that is "inexcusably bad" or "completely outside the bounds of what any reputable medical practitioner might prescribe" or "extravagant from the point of view of medical practice or hospital routine" may constitute a new cause. A discussion of this matter appears in Mahony v. J. Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at pp 529-30. The Tribunal does not seem to have considered the issues of causation in the light of the principles discussed in cases such as Mahony's case.

16. Secondly, the Tribunal referred to the well-known remarks of Rich A.C.J. in Adelaide Stevedoring Company v. Forst [1940] HCA 45; (1940) 64 CLR 538 at p 563-4 and said that the Tribunal was more persuaded by the approach adopted in the dissenting judgment of Dixon J. in that case and in the dissenting judgment of Stephen J. in Tubemakers of Australia v. Fernandez (1976) 10 ALR 303. If the Tribunal considered that the approach enunciated by Rich A.C.J. was wrong, the Tribunal was incorrect, for his Honour's remarks have often been cited and applied. Dixon J. in Forst's case and Stephen J. in Fernandez were in each case in dissent on the facts. We intend no criticism of what their Honours had to say; but the point is that, as Rich A.C.J. said, the sequence of events may assist a tribunal of fact to come to a decision on the facts. In Fernandez case, Mason C.J. at p 311 cited inter alia from the judgment of Dixon J. in Forst's case but did not adopt those remarks as governing the approach to be taken in all cases. Mason J. referred in addition to a number of observations including the remarks by Taylor J. in Australian Iron and Steel Limited v. Connell at pp 531-532 where his Honour said:-

"No doubt cases have arisen and will continue to arise
where the character and sequence of events may strongly
suggest that exertion played a material part in bringing
about death (cf. Adelaide Stevedoring Company Limited
v. Forst [1940] HCA 45; (1940) 64 CLR 538). But this is not such a
case and it is necessary to remember that it is for the
applicant to make out a case and that liability is not
established merely by proving that exertion may have been
a material factor."

Mason J. went on to say at p 311, as to the several passages he had cited:-

"These observations elaborate
with varying degrees of emphasis the general onus which
lies upon the plaintiff on an issue of causation where
the issue lies outside the realm of common knowledge and
experience and falls to be determined by reference to
expert medical evidence."

His Honour said at p 312, after referring to a comment by Menzies J. in Connell's case:-

"But it is quite another thing to suggest that these
remarks lend support to the view that confirmation of
expert evidence cannot be sought in a sequence of events
which tend to support the probability of a causal
connection or that a sequence of events cannot be called
in aid of drawing an inference which, according to expert
evidence, is open."

17. We mention this matter as the sequence of events in Mrs Barker's case could suggest that her problems resulted either from the injuries which she received at work or from the treatment which she received from Dr Mahony. Both of the medical practitioners called on behalf of Telecom expressed the view that Mrs Barker's current complaints were real but had a largely or partly psychosomatic basis. It was not inconsistent with their evidence that Mrs Barker's problems with the medial epicondyle arose initially from a psychosomatic response to the treatment given by Dr Mahony in respect of the lateral epicondyle. Nor was it inconsistent with their evidence, indeed it accorded with their evidence, that the problems with the right ulna nerve arose from the procedures adopted by Dr Mahony in treating the problem he perceived with the medial epicondyle. It follows that there was a relevant sequence of events which, in the light of the medical evidence, could have been significant. If the Tribunal thought that it was bound by the remarks of Dixon J. in Forst's case not to take this sequence of events into account, it was in error, though we make no comment as to the weight to be attached to that sequence.

18. Thirdly, the Tribunal spent some time in dealing with questions as to onus or burden of proof as discussed in cases such as Commonwealth of Australia v. Muratore [1978] HCA 47; (1978) 141 CLR 296, McDonald v. Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6 and Re Twyman and Commonwealth of Australia (1987) 13 ALD 402. Likewise, in this appeal, counsel for Mrs Barker based his address on issues as to onus of proof. Yet, common law concepts of onus of proof are rarely appropriate for the Administrative Appeals Tribunal even in compensation cases, as was pointed out in McDonald v. Director-General of Social Security cited above, and Reitano v. Commonwealth of Australia noted in (1985) 9 ALN. N201.

19. In this appeal, counsel for Telecom challenged the Tribunal's application of Muratore's case. However, it is not convenient to consider that issue. Muratore's case continues to have application in apposite circumstances. In Australian Postal Commission v. Burgazoff (1989) 10 AAR 296, it was held that there was no error of law in the decision of an Administrative Appeals Tribunal which applied those principles. Reitano's case is an example where Muratore's case was not apposite. So much depends on the facts. The findings of the Tribunal are inadequate to enable the Court to consider whether there was any error of law in the Tribunal's approach in this regard.

20. For the reasons we have given, the appeal should be allowed, paragraphs 3, 4 and 5 of the Orders made by the trial Judge should be set aside and, in lieu thereof, it should be ordered that the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again with or without hearing further evidence.

21. In this event, counsel for Telecom does not seek costs.