Re Australian Telecommunications Corporation v Frederick Thomas Willis [1993] FCA 53; (1993) 17 Aar 88 (24 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALIAN TELECOMMUNICATIONS CORPORATION
And: FREDERICK THOMAS WILLIS
No. Q G8 of 1991
FED No. 65
Number of pages - 24
Administrative Law
[1993] FCA 53; (1993) 17 AAR 88

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Appeal from Administrative Appeals Tribunal - Claim for compensation based on incapacity for work arising from degenerative disc spondylosis alleged to have been caused by personal injuries in the course of employee's employment suffered during period when Commonwealth Employees' Compensation Act 1930 (Cth) in force - Consideration of transitional provisions of Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) - Preliminary issues determined by Tribunal prior to hearing of substantive application - Whether reasonable apprehension of bias by reason of members of Tribunal having participated in hearing of preliminary issues - Whether compensation only payable if both injury and incapacity for work occurred during period when Act of 1930 in force - Whether there was any material of probative value before Tribunal to support its conclusion - Whether Tribunal failed to fulfil its statutory duty.

Administrative Appeals Tribunal Act 1975 (Cth), s.44(1)

Commonwealth Employees' Compensation Act 1930 (Cth), ss.9, 10, First Schedule

Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth), ss.14, 124(2)

HEARING

SYDNEY, 22 July 1992
24:2:1993

Counsel for the applicant : Mr J. Wallace

Solicitors for the applicant : Phillips Fox

Counsel for the respondent : Mr J.E. Murdoch

Solicitors for the respondent : C.A. Sciacca and Associates

ORDER

The Court orders that:

1. The application be dismissed.
2. The applicant pay the respondent's costs of the application.

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

DECISION

NEAVES J. This application by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) arises out of a claim for compensation dated 26 February 1987 made under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act") by Frederick Thomas Willis ("the respondent"), a former employee of the Postmaster-General's Department of the Commonwealth and, later, of the Australian Telecommunications Commission ("the Commission").

2. The claim was expressed to be based upon incapacity for work arising from a degenerative neck condition alleged to have been due to an injury received by the respondent in the 1950's (later said to have been in 1956) while playing rugby league football as an incident of a Lineman-in-Training course conducted by the Postmaster-General's Department at its Chermside Training School. The respondent subsequently relied, in support of the claim for compensation, upon an incident, said to have occurred in 1957, when, in the course of his employment at Tangorin (approximately 100 kilometres south of Hughenden), he was hit behind the left ear by a crowbar he was using to guide large diameter galvanised wire that was being wound on to what was referred to as a wire barrow which had been temporarily affixed to one set of the dual wheels of a motor vehicle.

3. On 15 October 1987, a determination was made under the 1971 Act by a delegate of the Commissioner for Employees' Compensation disallowing the claim. By letter of that date addressed to the respondent, the delegate noted that neither the incident in 1956 nor that in 1957 had been reported, that neither incident had caused incapacity for work and that the Commission had no details of either incident.

4. By application dated 8 December 1987, the respondent sought to have the determination reviewed by the Administrative Appeals Tribunal ("the Tribunal"). In the proceedings before the Tribunal, the parties were the present respondent as the applicant, the Commission as the first respondent and the Commonwealth of Australia as the second respondent.

5. On 1 December 1988, before the application to the Tribunal had been determined, the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act") came into operation. That Act repealed the 1971 Act and contained, in Part X, transitional provisions to which it will be necessary to refer later in these reasons.

6. When the application came before it on 16 December 1988, the Tribunal (constituted by the President (T.R. Hartigan J.), Miss S.A. Forgie (Deputy President) and Mr K.J. Lynch (Member)) acceded to a request by the parties that, before proceeding to hear all the evidence in the case, it decide a preliminary issue raised by the application. That issue was whether the respondent (the applicant before the Tribunal) was disentitled by reason of the provisions of s.16 of the Commonwealth Employees' Compensation Act 1930 (Cth) ("the 1930 Act") to compensation (as that term is used in s.124 of the 1988 Act) as sought by him in the proceedings before the Tribunal. The provisions of the 1930 Act were relevant as the incidents in 1956 and 1957 relied upon by the respondent occurred while that Act was in force. At the time of the occurrence of those incidents, s.16(1) of the 1930 Act provided:

"(1) The Commissioner shall not admit a claim for
compensation under this Act for an injury unless notice of the
accident has been served upon him as soon as practicable after it
has happened, and before the employee has voluntarily left the
employment of the Commonwealth, and unless the claim for
compensation has been made -
(a) within six months from the occurrence of the accident;
or
(b) in case of death - within six months after advice of
the death has been received by the claimant:
Provided always that -
(i) the want of or any defect or inaccuracy in the notice
shall not prevent consideration of the claim by the
Commissioner if he finds that the Commonwealth is not
prejudiced by the want, defect or inaccuracy, or that
the want, defect or inaccuracy was occasioned by
mistake, absence from Australia or other reasonable
cause; and
(ii) the failure to make a claim within the period above
specified shall not prevent consideration of the claim
by the Commissioner if he finds that the failure was
occasioned by mistake, absence from Australia or other
reasonable cause."

7. As the Tribunal noted in the reasons for its decision given on 30 June 1989, the parties, in presenting their arguments on the preliminary issue, had assumed - an assumption which the Tribunal considered to be correct - that the transitional provisions contained in Part X of the 1988 Act required that, in order to succeed in his claim for compensation, the respondent had to bring himself within the provisions of the 1930 Act, being the statutory provisions in force when the injuries relied upon were alleged to have been suffered.

8. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act and certain affidavits filed on behalf of the parties. It also heard oral evidence from the respondent. In its reasons for decision (reported (1989) 10 AAR 382), the Tribunal said at p 386:

"The Tribunal is satisfied that the applicant is an honest and
reliable witness and accepts his evidence, the substance of which
was not detracted from in cross-examination. Consequently, the
Tribunal accepts for the purpose of deciding the point at issue,
that the applicant was injured at Chermside and at Tangorin. It
accepts that he did not report the incident at Chermside because
he thought that it was minor and because he did not wish to appear
a 'sissy'. Furthermore, it accepts that he considered the
incident at Tangorin as minor and that he had forgotten both
incidents until 1981 when he saw Dr Watson who was trying to
establish the cause of his present condition. It also accepts
that in 1956 and 1957 he was aware that there was a reporting
system for accidents but that it was not stressed or emphasised by
his supervisors. Further, it accepts that the reporting of minor
incidents was mentioned but that he was not aware of the
importance of reporting minor incidents."

9. The Tribunal referred to Johnston v. The Commonwealth [1982] HCA 54; (1982) 150 CLR 331, Scott-Holland v. The Commonwealth [1983] FCA 2; (1982) 46 ALR 328 and The Commonwealth v. Connors [1989] FCA 78; (1989) 86 ALR 247. Although those cases were concerned with the application of the transitional provisions contained in the 1971 Act, the Tribunal considered that those provisions were sufficiently similar to the transitional provisions contained in the 1988 Act as to make those decisions relevant to a consideration of the transitional provisions of the 1988 Act. The Tribunal concluded that, by virtue of the provisions of s.124(2)(b) of the 1988 Act, the respondent could not be said to be entitled to compensation under the 1988 Act unless it determined that, in the factual circumstances revealed by the material before the Tribunal, compensation would have been payable to the respondent under the provisions of the 1930 Act. The Tribunal added (p 389):

"If this question is decided in favour of the (respondent) then
the Tribunal must consider at a later time the further provisions
of the 1988 Act."

The Tribunal accepted that, in determining whether compensation would have been payable under the 1930 Act, it was relevant to consider whether the procedural provisions of that Act had been complied with and whether the claim for compensation was barred by s.16.

10. Upon a consideration of the material before it, the Tribunal determined that the respondent was not disentitled by reason of the provisions of s.16 of the 1930 Act to compensation (as that term is used in s.124 of the 1988 Act) as sought by him in the proceedings before the Tribunal.

11. The matter again came before the Tribunal on 19 July 1989, the Tribunal being constituted by the same members as on the previous occasion. Mr Lynch had, however, by this time been appointed as a Senior Member of the Tribunal. The Tribunal acceded to a request by the parties that it determine a further preliminary issue which was identified by the Tribunal in its reasons for decision as being "whether, to show an entitlement to compensation in this case, the (respondent) has to satisfy the entitlement provisions of the 1930 Act and not the entitlement provisions of the (1988 Act)".

12. The reasons for decision of the Tribunal record it to have been the submission of counsel for all parties before the Tribunal that "the issue of entitlement to compensation in this case was to be resolved by reference to the entitlement provisions of the 1930 Act" and that "entitlement to compensation in this case did not require the application of the entitlement provisions of the 1988 Act". This way of putting the submission may lack precision as, if compensation were payable to the respondent, it was payable under the 1988 Act, albeit by reference to the provisions of the 1930 Act. However, what was intended by the submission is clear enough.

13. After referring to various provisions of the 1988 Act and examining in some detail the provisions of Part X thereof, the Tribunal, in its reasons for decision dated 23 February 1990 (reported (1990) 11 AAR 348), said (at p 356 of the report):

"What appears to us is that when the provisions of Pt X are read
as a whole it is plain that an employee's entitlement to
compensation in regard to a pre-existing injury and the obligation
of the relevant authority to pay compensation to an employee is
ascertained according to the provisions of the 1912 Act, the 1930
Act or the 1971 Act whichever was in force at the time the
entitlement or the liability arose. We do not consider that
ss124(1) or 124(2) requires entitlement or liability to be further
ascertained by application, for example, of the entitlement
provisions (such as ss14, 19 or 24) of the 1988 Act.
On the view we take a person is entitled to compensation in
respect of injuries which pre-existed the commencing day on the
same legal basis whether or not that person's claim for
compensation has been completed before or after the commencing day."

Later in its reasons for decision, the Tribunal expressed its conclusion in the following paragraph (at p 360 of the report):

"The Tribunal has come to the conclusion that in this case the
entitlement to compensation comes about by virtue of s124(1) of
the 1988 Act. That entitlement is, by virtue of s124(2) of the
1988 Act, to be decided on the basis of whether or not the
(respondent) was entitled to compensation under the provisions of
the 1930 Act as it applied at the time the injury was suffered.
The (respondent) to succeed must show an entitlement to
compensation under section 9 of the 1930 Act ....
The (respondent) does not have to show any entitlement arising
under the corresponding but not identical provisions of the 1988 Act."

14. The matter was further heard by the Tribunal on 25 June 1990. On that occasion the Tribunal was constituted by Miss S.A. Forgie (Deputy President), Mr K.J. Lynch (Senior Member) and Dr G.S. Urquhart (Member). On 9 November 1990, the Tribunal set aside the decision under review, namely the decision made on 15 October 1987 disallowing the respondent's claim for compensation, substituted a decision that the respondent was entitled to compensation for degenerative cervical spondylosis and adjourned the matter for further consideration. It is in respect of this decision that the present application is brought. No challenge is made to the decisions made by the Tribunal on 30 June 1989 and 23 February 1990.

15. In its reasons for decision dated 9 November 1990, the Tribunal considered whether the respondent had shown an entitlement to compensation under s.9 of the 1930 Act. That section, so far as relevant, had, at the times the injuries were said to have been suffered, provided:

"(1) If personal injury by accident arising out of or in the
course of his employment with the Commonwealth is caused to an
employee, the Commonwealth shall, subject to this Act, be liable to
pay compensation in accordance with the First Schedule to this Act."

The First Schedule prescribed the amounts of compensation payable where the injury had caused death, total incapacity for work or partial incapacity for work.

16. Based on the oral evidence given by the respondent (whom the Tribunal regarded as a truthful and accurate witness) concerning what the Tribunal referred to as the "background facts" and such corroborative evidence as was to be found in the documentary material before it, the Tribunal made the findings of fact set out in pars 6 and 7 of its reasons for decision. Those paragraphs read:

"6. Mr Willis was born on 19 February, 1938 and left school at
the age of 14 to take up employment as a telegram boy with the
Postmaster General's Department ("the PMG"), some of the functions
of which were later incorporated in the Australian
Telecommunications Commission ('the Commission'). He lived with
his mother who had been widowed when he was 12 years of age and
went to work to help to support her. He was the youngest of nine
children. In 1955, he commenced training at the PMG Training
School at Chermside as a Lineman in Training. As part of that
course he was required to play sport such as cricket and rugby
league football in competition with the instructors or with
trainees from the Technicians School. Such games were part of the
curriculum of the Training School and were played within working
hours. The boundaries of the rugby field were marked by a trench.
Mr Willis gave evidence that he was injured on this field in 1956
and we will return to that evidence shortly.
7. Upon completing the training course, Mr Willis obtained a
position in the Primary Workers Aerial Camping Parties and was
sent to work outside Brisbane in 1957. One of the camps at which
he worked during this period was situated at Tangorin which is
approximately 100 kilometres south of Hughenden. It was while in
that position that Mr Willis was injured in 1957 and, again, we
will return to the evidence on that shortly. Mr Willis spent some
eighteen months to two years in the country before returning to
Brisbane in 1959. He continued to work for Telecom but began
suffering pain in approximately 1976. He endeavoured to ensure
that he was fit to work and, although he had some time away from
work, worked until 1978 when he was invalided out of Telecom. He
has not worked since then, either on a paid or unpaid basis. From
approximately 1981 to 1983, he was President of the Harness Racing
Association but he has never driven harness horses. His only
hobby is growing a small variety of orchid."

17. Having referred in some detail to the evidence given by the respondent as to the circumstances in which the injuries relied upon were suffered and the medical evidence before it, the Tribunal said:

"30. The (respondent) impressed us as an honest and reliable
witness. His evidence was not seriously challenged in
cross-examination and it was supported in all material respects by the
affidavits filed. Consequently we accept his evidence and make
the following findings. We accept that the playing of sport was
part of the curriculum of the PMG Training School at Chermside
that he was required to take part in. We accept that Mr Willis
was injured in the manner in which he has described in a match of
football played at the Chermside Training School in 1956. We
accept that he did not report the incident because he thought that
it was minor and because he did not wish to appear 'sissy'. We
also accept that he was injured at Tangorin in 1957 in the manner
in which he has described. Furthermore, we accept that such were
the conditions and environment of the camp at Tangorin that he did
not wish to make a fuss about having been knocked out. We accept
that he considered that whingers would not be tolerated.
31. We accept that the incidents that occurred in 1956 and 1957
are the only incidents in which Mr Willis has suffered direct
injuries to his head or neck. The difference in the medical
evidence, and consequently between the parties, revolves around
whether the incidents that occurred in 1956 and 1957 caused the
(respondent's) cervical disc degeneration."

18. The Tribunal went on to refer to some of the medical evidence before it and noted that conflicting opinions had been expressed by Dr Donald Watson (called on behalf of the respondent) and Dr Anthony Arthur Crampton Blue (called on behalf of the Commission and the Commonwealth). Both Dr Watson and Dr Blue had provided reports and given oral evidence before the Tribunal. The Tribunal then said:

"34. Having considered the evidence of Mr Willis and the evidence
of both Dr Blue and Dr Watson, we have concluded that we prefer
the evidence of Dr Watson to that of Dr Blue on several grounds.
Each has started from a different premise: Dr Watson that there
must be a reason for Mr Willis's condition and Dr Blue that it is
'naturally occurring' (Exhibit 2). Dr Watson has displayed a
willingness to consider the possible causes of the condition. Dr
Blue has not, either in his report or in his oral evidence even
when further details were put to him during his oral evidence. He
has two reasons for refusing to do so. First, it is his view that
the nature of the injuries could not have caused the disc
degeneration. Second, if they had, he believed that the changes
would have been well established in the X-rays in 1976 and
certainly not revealing the rapid progress demonstrated in more
recent X-rays of 1981 and 1987. This is not consistent with the
medical reports written in 1976 by Dr Ridgway who described his
condition then as 'chronic', in 1978 by Dr Gallagher who described
him as having 'quite a deal of spondylitic changes' and in 1979 by
Dr Bendeich who said his cervical spine showed 'gross degenerative
changes'.
35. Dr Blue also places considerable emphasis on the fact that
Mr Willis failed to take time away from work after each injury and
uses that fact to support a view that he could not have regarded
them as very serious. We have had the advantage of hearing Mr
Willis's evidence on the reasons why he did not report the 1956
accident. We accept that he did not wish to be regarded as a
'sissy' and that this prevented him from complaining about the
injury. In reaching that conclusion we have accepted that he was
still a young lad living in rough conditions. Similarly, in
relation to the 1957 incident which he did report to his party
leader, we accept that the conditions were rough with lads of his
own job (sic) living together and that whingers were not
tolerated. These seem good reasons why a person would not be
looking to take time off work. It follows that we agree with Dr
Blue's assessment that Mr Willis did not regard the injuries as
serious at the time they occurred, but that, in our view, the next
step which is implicit in Dr Blue's proposition (namely that they
were not serious) does not necessarily follow. Mr Willis did not
treat them as serious but that does not mean that they were not
serious. In view of the evidence before us, we cannot accept Dr
Blue's general proposition as to the likelihood or otherwise of
employed people taking time away from work as opposed to the
self-employed.
36. Taking all of the evidence into account, we prefer the
evidence of Dr Watson and find that the injuries in 1956 and 1957
caused Mr Willis's degenerative cervical spondylosis."

19. The Tribunal also considered, but rejected, a submission advanced by counsel for the Commission and the Commonwealth that the relevant section of the 1930 Act was not s.9 but s.10 because the condition from which the respondent was suffering was a disease and that the respondent had not satisfied the requirements of the section. Section 10 relevantly provided:

"(1.) Where -
(a) an employee is suffering from a disease and is
thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
and the disease is due to the nature of the employment in which
the employee was engaged by the Commonwealth, the Commonwealth
shall, subject to this Act, be liable to pay compensation in
accordance with this Act as if the disease were a personal injury
by accident arising out of or in the course of his employment.

20. Before proceeding further, it is to be noted that, although the Commonwealth was a party to the proceedings before the Tribunal, it was not joined as a party to the application before the Court. I directed that inquiries be made whether the Commonwealth wished to make submissions to the Court upon the issues raised by the application and I was subsequently informed that the Commonwealth did not wish to do so.

21. It is convenient at this point to refer to some of the provisions of the 1988 Act. Section 14(1) provides that, subject to Part II of the Act, the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. "Injury" is defined in s.4(1). Section 124(1) provides that, subject to Part X, the Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day, namely 1 December 1988. Section 124(2) relevantly provides:

"A person is not entitled to compensation under this Act in
respect of an injury, loss or damage suffered before the
commencing day if compensation was not payable in respect of that
injury, loss or damage:
(a) ....;
(b) where the injury, loss or damage was suffered after
the commencement of the 1930 Act but before the
commencement of the 1971 Act - under the 1930 Act as
in force when the injury, loss or damage was suffered;
or
(c) ...."

22. On the basis that the transitional provisions contained in the 1988 Act required that the respondent's claim for compensation be considered by reference to the provisions of the 1930 Act, counsel for the applicant (the successor to the Commission) submitted that the Tribunal had failed to give full effect to s.124(2) of the 1988 Act. That provision, the text of which is set out above, provides that a person in the situation of the respondent is not entitled to compensation under the 1988 Act in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act if compensation was not payable in respect of that injury under the 1930 Act as in force when the injury was suffered. It was submitted that compensation was not payable under the 1930 Act as in force when the injury was suffered unless it was determined not only that the employee suffered the injury in the course of his employment but also that, while the provisions of the 1930 Act remained in force, incapacity for work resulted from that injury. It being the position that the respondent did not assert that any incapacity for work had resulted from the injuries suffered in 1956 and 1957 during the period that the 1930 Act remained in force, counsel for the applicant submitted that the claim for compensation could not succeed and that the decision of the Tribunal should be set aside and the decision under review by that Tribunal affirmed.

23. I am unable to accept that submission as, in my opinion, it misconceives the true meaning and effect of s.124(2) of the 1988 Act. During the period that the 1930 Act was in force, it was necessary for an employee who claimed that an amount of compensation in accordance with the First Schedule to that Act was payable to him to establish at least two matters. He had to show that he had suffered "personal injury by accident arising out of or in the course of his employment by the Commonwealth" and that he was totally or partially incapacitated for work by that injury. The purpose of s.124(2)(b) is to ensure that compensation is not payable under the 1988 Act in respect of an injury suffered during the period when the 1930 Act was in operation unless the circumstances are such that, had the 1930 Act, in the form in which it stood at the time the injury was suffered, remained in operation, compensation would have been payable under that Act. While the operation of the provision is expressly conditioned upon the injury relied upon having been suffered during the period that the 1930 Act was in operation, the provision does not require that the incapacity for work resulting from that injury should have occurred during that period. The provision does not expressly so provide and no sufficient reason has been advanced why such a requirement should be implied. To construe the provision in the manner contended for by the applicant would, so it seems to me, defeat the evident intention of the Parliament. In my opinion, there is nothing in the decision in Blackman v. Australian Telecommunications Corporation (1990) 12 AAR 11 relied upon by counsel for the applicant that requires a different conclusion to be reached.

24. Counsel for the applicant also contended that the Tribunal that made the decision under review had not been properly constituted as two of its members, Miss Forgie (Deputy-President) and Mr Lynch (Senior Member) had, in the course of the hearing of the preliminary issues, predetermined that s.9 was the relevant section of the 1930 Act to be considered and had formed and expressed a view as to the credibility of the respondent as a witness. It was submitted that those circumstances gave rise to a reasonable apprehension of bias on the part of those members of the Tribunal.

25. Assuming that the point may properly be raised in a proceeding brought under s.44(1) of the Administrative Appeals Tribunal Act, as to which I need express no opinion, the contention lacks substance. It is true that in the reasons for its decision given on 23 February 1990 the Tribunal expressed the conclusion that, in order to succeed, the present respondent had to show an entitlement to compensation under s.9 of the 1930 Act. The Tribunal's reference to that section is, however, clearly understandable. The basis of the case put forward by the respondent, and the only case put forward by him, was that he was entitled to compensation by reason of having suffered personal injury by accident arising out of or in the course of his employment. It was not until the resumed hearing on 25 June 1990 that an issue was raised by the present applicant that the relevant provision of the 1930 Act was s.10 rather than s.9. As has already been noted, the Tribunal considered and rejected that contention.

26. The circumstance that, in hearing the second of the preliminary issues, a hearing upon which the Tribunal embarked at the request of the parties, the Tribunal expressed a view as to the credibility of the respondent in relation to the evidence he then gave provides, in my opinion, no sound basis to found an apprehension of bias in the members of the Tribunal when they embarked upon the resumed hearing of the respondent's application. It should be added that no suggestion was made to those members of the Tribunal when the hearing resumed that they should not further participate in the matter.

27. A further submission on behalf of the applicant was that the Tribunal had failed to consider the ultimate question that the statutory provisions required it to consider, namely whether any, and if so what, amount of compensation was payable to the respondent. It was submitted that the matter should be remitted to the Tribunal with a direction that it proceed to answer that question upon the material that was before it when the decision of 9 November 1990 was made.

28. It may be noted that the decision of the Tribunal is expressed elliptically. It is clear enough, however, that the Tribunal was of opinion that personal injury by accident arising out of or in the course of his employment had, in 1956 and 1957, been caused to the respondent and that those injuries had caused the respondent's degenerative cervical spondylosis. The Tribunal did not go on to determine whether any, and if so what, amount of compensation was payable to the respondent but adjourned the matter for further consideration.

29. It is apparent from a reading of the transcript of the proceedings before the Tribunal on 25 June 1990 that no argument was addressed to the Tribunal as to the quantum of compensation that would be payable if the Tribunal were to reach the conclusion that it did. The argument was confined to the question whether the respondent had suffered the injuries alleged (an issue not seriously contested) and whether those injuries were the cause of his then medical condition. There is nothing before the Court to suggest that the Tribunal would not proceed to determine the quantum of compensation payable to the respondent if the parties are unable to reach agreement in relation to that aspect of the matter and request the Tribunal to make a determination. There has been no failure on the part of the Tribunal to fulfil its statutory duty and it would, in my opinion, be quite inappropriate to make the order sought.

30. For the applicant it was also submitted that there was no material of probative value to support the Tribunal's conclusion that the respondent's condition of degenerative cervical spondylosis was caused by the injuries suffered in 1956 and 1957. As counsel acknowledged, it is not for the Court to consider the material that was before the Tribunal on this issue and form its own conclusion. Its task is much more limited than that.

31. The relevant material upon which the Tribunal acted comprised the reports dated 21 July 1981 and 26 August 1987 furnished by Dr Watson, an orthopaedic surgeon, and his oral evidence before the Tribunal. The earlier of those reports reads:

"I saw this 42 year old technical assistant on the 20.7.81.
He claims he had had constant trouble with his neck and the
interspondlar region since an incident in 1976. This involved
simply lifting a steel frame. He had never really been well since
and was compelled to retire two and a half years ago.
In his history are recorded three other episodes of lifting a
ladder, lifting a pole and finally when he was rolling a cable
drum in 1962.
Reading the various reports on file it is evident that even in
1976 the time of the precipitating injury he had quite advanced
signs of cervical spondylosis. At that time he was only about 36.
I said to him that not one of the recorded episodes in his history
could explain the premature and quite advanced state of cervical
spondylosis in a man of 36.
He then recalled an incident in the middle fifties when he was in
the employ of Telecom or its predecessor. He and his friends were
playing football in the lunch hour. He was tackled, landed on his
back with his head in a small trench and jammed there. The body
of his tackler somehow or other struck Mr Willis on the chin and
in consequence his neck was extremely painful for a while
thereafter.
He was then only in his teens and did not report it he said but it
may be recorded.
At all events it seems to me that herein lies an explanation of
his extraordinarily advanced cervical spondylosis.
He says that now his neck is sore constantly in the lower cervical
region posteriorly and down to the point of the left elbow. On
occasions he has pain down the inner side of the left arm.
He has diffuse tenderness over the posterior cervical region. All
neck movements seem to be restricted and all cause discomfort. I
could not find any motor or sensory loss in the arms.
X-rays show advanced cervical spondylosis with large posterior
osteophytes predominantly at the C5 - 6 level.
Comment:
In summary he has advanced cervical spondylosis far in excess of
normal for his age. I do not believe any of the recorded
incidents could be blamed for this. I believe it far more likely
that the more severe, more direct neck injury which occurred in
the middle fifties is the cause for his trouble."

Dr Watson's later report reads:

"I saw this patient again on the 25.8.87.
He tells me that he is worse if anything. In the last year or so
the pain has radiated to the right shoulder. Prior to this it had
affected only the neck, left shoulder and arm.
In the interim he has recalled yet another incident - in this time
(sic) in 1957 when he was hit behind the left ear by a crowbar.
He was knocked out in this episode and had a very violent headache
for at least some time afterwards.
The findings were essentially as they were six years ago.
He has diffuse tenderness over the back of his neck - all neck
movements and particularly extension are grossly restricted.
An X-ray taken early this year shows quite advanced spondylosis as
described previously.
COMMENT:
In my report to the Postal and Telecommunications Union in July
1981 I said that none of the three episodes of injury on record
could have been responsible for the advanced cervical spondylosis
present in a man then aged 42. I said the most likely cause of
onset was a football injury in 1956 for which Mr Willis has as I
understand it supportive evidence.
He has recalled a further injury - a blow with a crowbar in 1957 -
which again he can substantiate.
Each of these could have set in train the degenerative state which
is visible now.
Incidentally I have viewed X-rays of his neck taken in 1976 and
these show gross changes at the C5 - 6 level.
He has had physiotherapy. He has worn a collar. He gives himself
traction at home and he has had a range of drugs.
I do not think anything is going to provide him real relief.
I have not found that surgery is a very satisfactory answer for
problems of this sort.
In other words I can only suggest supportive treatment."

32. In answer to the question, asked of him by counsel for the present respondent, what was the link between the incident in the middle fifties and the degenerative state that he found in the respondent's neck when he examined the respondent on 20 July 1981, Dr Watson replied:

"Well, put very simply, the time interval. The injury itself
sounded sufficiently violent to have started something. Secondly,
there were 20 years' interval between that incident and the X-ray
of 1976."

He also gave the following evidence:

"Q. Doctor, can you just explain the way in which trauma of the
kind involved in the 1956 and 1957 incidents could set in
train a degenerative state?
A. Well, the degenerative state is a natural process with age.
What the injuries do is to accelerate the natural progress
of the condition and brings it on earlier on occasion.
Q. If we were to use a but for type analysis, is the reason but
for those traumas as a young man, one could expect this
man's neck would not have been in the state it was when he
was in his mid-thirties?
A. Quite.
Q. In terms of the setting in train - you have a situation a
young person receives trauma by way of traumatic injury to
the neck. What is it, in a orthopaedic sense, that sets in
train the degenerative process?
A. The degenerative process involves a disintegration of a
substance called collagen. It is a long chain - wriggly
molecule that provides tensile strength to ligaments. When
it is damaged, it fragments and when it fragments it loses
its tensile strength and it ruptures easily and wears easily."

33. In cross-examination, in relation to his report dated 26 August 1987 in which he stated that each of the incidents in 1956 and 1957 could have set in train the degenerative state then visible, Dr Watson was asked whether he could say on the balance of probabilities whether those incidents could have caused the condition. He said:

"The whole think hinges on the acceptance of the history. If they
are the only two violent stresses to which his neck was subject,
then certainly on the balance of probability they certainly caused
it, but that is what I do not know."

His evidence went on:

"Q. So you do not know whether that is the case?
A. He might have been bashed over the head many times for all I
know.
Q. In those particular two incidents, you can take it that Mr
Willis did not have any time off work and did not seek any
medical treatment. Mr Willis has given that evidence. Now,
given that he had no time off work and that he does not
appear to have any difficulties with continuing in his job,
is it therefore likely that these two incidents can be said
to have any relationship with his present condition?
A. You will understand that opinions depend a good deal on
one's experience and if I may introduce a personal
experience, I can date my grossly degenerative cervical
spine to an attempt to high jump at the age of 13. Before
that I had no trouble. Forever after that I had odd bits of
trouble until it incapacitated me some years ago. So I have
no trouble answering the point you raise that the fact I did
not go off work after I attempted to high jump - I attended
school but I paid for it 45 years later."

Dr Watson did not agree that his opinion was based solely on the history provided by the respondent and said he flatly disagreed with anyone who said that advanced degenerative change in a man of the respondent's age in July 1981 was natural. He added:

"We do not deteriorate that quick."

He also gave the following evidence in cross-examination:

"Q. But is it the case that you are just looking for some sort
of incident to relate this to his present condition and that
is the only incident that you have been provided with?
A. Certainly I was searching for an explanation of this
unusual, to me, phenomenon.
Q. And to that extent you are relying on Mr Willis's history he
has given to you?
A. Yes.
....
Q. Can I put this to you, doctor, that the opinion that you
have offered is really a speculative one insofar as it is
retrospectively looking back some 25 or 30 years and trying
to find some cause for this man's advanced condition?
A. Of course I am posed with the question: what is the cause
of his condition? I can do nothing else to explore it or
speculate, as you put it.
Q. If you are only given, for instance, one incident which you
regard as serious enough, then that is the incident you must
rely upon?
A. Yes."

34. Following Dr Watson's evidence, the respondent was recalled and gave evidence that he could not remember any incident, apart from those in 1956 and 1957 of which he had given evidence, that involved injuries to his head or neck. He was not cross-examined on that evidence.

35. It was, of course, a matter for the Tribunal to evaluate that evidence. As has already been said, it is not for the Court to consider whether it would have reached the same conclusion as that reached by the Tribunal. Considering the whole of the evidence, I am of opinion that it was of sufficient probative value to entitle the Tribunal to reach the conclusion that it did.

36. For the reasons set out above, I am of opinion that the application should be dismissed and I so order. The applicant must pay the respondent's costs of the application.