Total Marine Services Pty Ltd v Michael Kiely (includes corrigendum dated 11 June 1998) [1998] FCA 153 (4 March 1998)

Last Updated: 11 August 1998

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) NG 607 of 1997

GENERAL DIVISION )

BETWEEN:

TOTAL MARINE SERVICES PTY LTD

Applicant

AND:

MICHAEL KIELY

Respondent

JUDGE: SACKVILLE J.

PLACE: SYDNEY

DATE: 11 JUNE 1998

CORRIGENDUM

The Federal Court file number in this matter should be NG 607 of 1997, not NG 407 of 1997, as previously published.

...................................

Deborah de Fina

Associate to Sackville J

Dated: 11 June 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - judicial review - appeal from decision of Administrative Appeals Tribunal that worker was incapacitated for work - whether AAT failed to comply with its obligations under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) - whether adequate reasons given by the Tribunal for its determination - whether decision unreasonable.

Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B).

Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 26, 28, 31, 77, 78, 88, 89 .

Australian Postal Corporation v Wallace (FCA/Tamberlin J, 26 February 1996, unreported), cited.

Australian Telecommunications Commission v Barker [1990] FCA 489; (1990) 12 AAR 490 (FCA/FC), cited.

Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC), cited.

Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) [1980] FCA 96; (1980) 47 FLR 131 (FCA/FC), cited.

Collector of Customs v Pozzalanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (FCA/FC), cited.

Dodds v Comcare (1993) 31 ALD 690 (FCA/Burchett J), cited.

Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), cited.

East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 (FCA/FC), cited.

Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 69 FCR 28 (FCA/Sackville J), cited.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, cited.

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (FCA/FC), cited.

Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 (FCA/Wilcox J), cited.

Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029 (FCA/Lockhart J), cited.

TOTAL MARINE SERVICES PTY LTD V MICHAEL KIELY

NG 407 OF 1997

SACKVILLE J

SYDNEY

4 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 407 of 1997

BETWEEN:	TOTAL MARINE SERVICE PTY LIMITED Applicant
AND:	MICHAEL KIELY Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	4 march, 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 407 of 1997

BETWEEN:	TOTAL MARINE SERVICEs PTY LIMITED Applicant
AND:	michael KIELY Respondent

JUDGE:	SACKVILLE J
DATE:	4 march, 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Proceedings

This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal ("AAT"), brought pursuant to s 44(1) of the Administrative Appeals Act 1975 (Cth) ("AAT Act"). The AAT determined that the present respondent ("the employee") was incapacitated for work for the period 5 February 1996 until 6 May 1996 and that he should be paid compensation pursuant to ss 26, 28 and 31 of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the "SRC Act"). The AAT also set aside a reconsideration determination made by the present applicant ("the employer") on 24 July 1996, to which I shall refer later.

The employer relies on a large number of errors of law said to have been committed by the AAT, which was constituted by a medical practitioner. The alleged errors by the AAT include its failure to give adequate reasons for its decision; its failure to take into account relevant considerations; and its reaching an "unreasonable and perverse" decision.

The medical and legal costs incurred by the parties to this case would seem to outweigh the compensation payments at issue by a substantial margin. However, this does not detract from the need to give careful consideration to the issues raised by the appeal.

The Legislation

Section 26(1) of the SRC Act provides that if an employee suffers an injury that results in his or her incapacity for work, compensation is payable for the injury. If an employee suffers an injury and obtains medical treatment for that injury, compensation is payable for the cost of the medical treatment: SRC Act s 28(1). The quantum of compensation is that specified in s 31 of the SRC Act. The word "injury" is defined in s 3 of the SRC Act to include an injury suffered by an employee, being a physical injury or an aggravation of a physical injury arising out of, or in the course of the employee's employment.

The SRC Act provides for determinations of claims by employers (s 77), reconsideration of determinations by employers (s 78) and applications to the AAT by claimants for review of reconsideration determinations (ss 88, 89).

Background

Some of the facts found by the AAT were not in dispute. Other facts, although not the subject of specific findings, were not contentious. It is convenient at the outset to set out the material facts, concentrating on those that were not the subject of challenge.

The employee was born in 1955. He commenced work with the employer on 25 January 1996 as a crane driver/seaman and rigger on the vessel Jan Steen, which was undertaking work off Narrabeen Cliffs.

On 5 February 1996, the employee completed a handwritten report of an accident aboard the Jan Steen, which was said to have occurred on 1 February 1996 at about 9 pm. In the written report the applicant said that he was injured when a handrail broke off completely from a crane and he fell backwards some ten feet onto a steel deck. He claimed to have jarred his ankles and back. The report included the following notation by the employee:

"2nd report to mate John Prince. On 1st report log book could not be found; have had twinges in back & legs since this incident. Dated this 5/2/96. M J Kiely."

The employee remained at work after the accident until 5 February 1996. However, in his evidence, the employee claimed that during this period, he performed work that did not involve driving a crane. On 5 February 1996, he obtained a medical certificate stating that he was unfit for work for a week. The employee then saw a general practitioner, Dr Gutauskas, who ordered X-rays which were performed on 7 February 1996.

On 21 February 1996, the employee was seen by Mr Websdale, described by the AAT as a physiotherapist, apparently on the employee's own initiative. According to a report by Mr Websdale dated 24 March 1996, he had seen the employee over a period of four weeks and during this period the employee had "advanced a great deal". Mr Websdale expressed the view that it would take another eight weeks to "completely stabilise the problem".

On 23 February 1996, the employee sought treatment from a general practitioner, Dr Finch, who ordered a CAT-scan and X-rays and treated his symptoms with analgesics and valium. Dr Finch provided a medical certificate testifying that the employee was suffering low back pain and was unfit for work until 23 March 1996. Dr Finch referred the employee to an orthopaedic surgeon, Dr Stephen, who saw the employee on 4 March 1996. On the same day, he was seen by Dr Price, at the request of the employer's insurer. Both Dr Stephen and Dr Price prepared reports to the effect that the employee was fit (Dr Price) or "probably fit" (Dr Stephen) to resume work.

On 6 March 1996, the employer wrote to the employee advising that the employer had determined that he had no further entitlement to compensation pursuant to the SRC Act. The letter stated that the employee was no longer incapacitated for work as a result of an injury arising out of or in the course of his employment.

On 19 March 1996, the employee was seen by Dr Harvey-Sutton, an occupational health physician, employed by the Australian Government Health Service. Dr Harvey-Sutton considered that the applicant had suffered an aggravation of the underlying constitutional condition of the spine caused by axial loading upon the spine; that he was making a good recovery; that on that day he was currently unfit for duties but that he would be fit to commence a graduated return to work in four weeks time.

On 22 March 1996, Dr Finch again saw the employee. She provided a further medical certificate, certifying that the employee was unfit for work for a further period until 22 April 1996. Although the certificate did not expressly identify the employee's condition, it would be open to infer that the certificate was granted by reason of a continuation of the condition identified in Dr Finch's first certificate.

On 27 March 1996, the employee requested that the employer reconsider its determination. The employee enclosed a copy of the report from Dr Harvey-Sutton in support of his request.

On 22 April 1996, a physiotherapist, Mr Stuckey, prepared a report on the employee's condition, based on an examination which took place on 18 April 1996. The report noted that, upon objective examination, the employee had "obvious spasm of superficial musculature on right thoraco lumbar region". Mr Stuckey said that, from his understanding of work at sea, he agreed with the employee who thought that by returning to sea his condition would be exacerbated.

Professor John Yeo, described by the AAT as a "consultant rehabilitationist" examined the employee on 1 May 1996 and provided a report the following day, addressed to Dr Finch. Professor Yeo's report concluded as follows:

"Mr Kiely has suffered a significant injury to para-spinal lumbar muscles and ligaments when he fell from a height of three metres on 1.2.96. He has had consistent symptoms since this fall, necessitating absence from his employment in order for him to continue with appropriate therapy, which has resulted in significant improvement.

Mr Kiely has now recovered sufficiently for him to return to his employment full-time, on 6.5.96. I have encouraged him to continue a controlled exercise programme and use local heat and massage when necessary."

On 24 July 1996, the employer's representative affirmed the determination of 6 March 1996, pursuant to s 78(6) of the SRC Act. The employee subsequently sought review by the AAT of the employer's reconsideration determination. As I have noted, the AAT set aside that determination.

AAT's Reasons

The AAT in its reasons referred at some length to the employee's evidence, including his cross-examination. The AAT also summarised the various medical reports, including the certificates provided by Dr Finch.

Under the heading "CONSIDERATION AND FINDINGS" the AAT reasoned as follows:

"31. In submissions the Applicant's counsel stated that:

`Mr Kiely has not really assisted himself in the way that he has given evidence. He has been difficult, he has been confused, he has tried to second guess or third guess questions all the time.'

The Tribunal concurs in that assessment and further finds the Applicant's evidence to be both unreliable and self serving in parts. However, the Tribunal also notes that, in parts, the Applicant's evidence was disingenuously frank. This all leads to a particular difficulty for the Tribunal in its attempts to ascertain what is fact and what is fiction in the circumstances of this case.

32. The Tribunal notes the history of the incident, its causation and the surrounding issues as to the safety of the crane; that the Applicant worked some shifts after the incident and did not seek immediate medical attention after the accident occurred; that he first sought treatment for his injury from his local doctor in Karuah on 5 February 1996 who prescribed physiotherapy and naprosyn and referred the Applicant for X-rays; that the X-rays of the lumbo sacral spine indicated an underlying constitutional condition; that Mr Websdale concluded from the X-Rays that the Applicant has suffered a compressed tail bone injury as evidenced by the L5-S1 compression; that the Applicant moved to his mother's house and Dr Finch became his treating practitioner; that Dr Finch referred him for a CAT Scan of his lumbar spine, to the orthopaedic specialist for assessment and to Mr Stuckey for an opinion; that Dr Finch treated the Applicant with naprosyn, endone and valium and provided certificates certifying that the Applicant was unfit for work up until 6 May 1996.

33. The Tribunal, in assessing the various specialist opinions, is mindful of the nature of the injury sustained. All the doctors consulted are of the opinion that the injury involved either damage to his paraspinal lumbar muscles and ligaments or aggravation of an underlying constitutional condition (Dr Harvey-Sutton). The issue outstanding is the question of severity and the rate at which recovery from the accident can be said to have occurred.

34. The Tribunal notes that in their reports both dated 4 March 1996, Drs Stephen and Price indicate that the injury received was not serious and that the Applicant could return to work at that time. Dr Price also noted that the Applicant was taking one naprosyn, one endone and three valium a day. The Tribunal further notes that Dr Finch was the treating general practitioner and had referred the Applicant to Dr Stephen. The Tribunal also notes that Dr Finch referred the Applicant to Mr Stuckey who, in his report dated 22 April 1996, noted spasm of `the superficial musculature on the right thoraco lumbar region'. Further the Tribunal notes the opinion of Dr Harvey-Sutton and her examination of the Applicant of 19 March 1996 where she observed half normal range of spinal flexion of the thoraco lumbar spine, indicating that the Applicant had not fully recovered from the accident and that he was at that time unfit for duty. The Tribunal is aware of Mr Websdale's opinion and notes the opinion of Dr Yeo who found that the Applicant had sustained a significant injury to the paraspinal muscles and ligaments, but that the Applicant had recovered sufficiently for him to return to his employment full time in early May.

35. The Tribunal in the course of the proceedings was made aware of the fact that the Applicant had consumed alcohol periodically during his period of incapacity; that he had, with his mother, driven in the latter's car for a considerable time and distance in late February 1996. Nevertheless, the Tribunal recognises that the treating general practitioner, Dr Finch, throughout the period in question, has continued to issue certificates indicating that the Applicant was unfit for work. Further, it is evident that this was done even in the light of Dr Stephen's opinions conveyed in his report made in early March 1996 which were of the view that an early return to work would depend on the Applicant's motivation. The Tribunal further observes that Dr Finch continued to seek confirmation of the Applicant's condition which is evidenced by her referral of the Applicant to Mr Stuckey; that the Applicant seemed self-motivated in organising referrals to Mr Websdale and Dr Harvey-Sutton, and was agreeable to Mr Websdale's referral to Dr Yeo.

36. The Tribunal, despite having experienced much difficulty with the Applicant's mode of presentation of his evidence, and the Applicant's attempts to pre-empt and rationalise issues, concludes that the Applicant did suffer an injury to his paraspinal muscles and ligament of his lumbo sacral area as a result of an incident involving a crane on 1 February 1996. Further the Tribunal finds that the Applicant continued to suffer the effects of this injury from 6 March 1996 to 6 May 1996. In so finding the Tribunal relies upon the activities and actions of the treating general practitioner, Dr Finch, who coordinated the case and treatment of the Applicant and issued certificates indicating that the Applicant was unfit for work for the period in question; the findings and opinion of Dr Harvey-Sutton, the opinion of Dr Yeo and the findings and opinion of Mr Stuckey. The Tribunal, in nothing that Dr Stephen and Dr Price examined the Applicant on the same day, namely 4 March 1996, concludes that their assessments were a true reflection of how the Applicant presented on that day. Nevertheless in balancing the presentations on that particular day against presentations to a variety of other medical and professional practitioners over time, the Tribunal considers that significant weight must be given to the views of the treating medical practitioner, who in this case, despite receiving varying opinions from practitioners to whom she referred the Applicant, continued to issue medical certificates indicating that the Applicant was unfit for work during the period in question."

The Employer's Submissions

The employer submitted that the AAT had made the following errors of law:

* it had failed to give reasons for its decision in such a way as to allow the employer to understand the findings it had made, particularly the finding relating to incapacity for work;

* having accepted that the employee's evidence was unreliable, it failed to take account of the effect of that finding on the expert evidence which the AAT accepted;

* it both accepted and rejected the evidence of the employer's experts, but provided no reasoning process for doing so;

* it failed to take account of relevant considerations in that it had not considered whether the employee had given doctors an unreliable and self-serving history and it had failed to take into account evidence that the employee was capable of driving long distances when claiming to be incapacitated;

* it had failed to comply with s 43(2B) of the AAT Act, which requires the AAT to include in its reasons findings on material questions of fact and a reference to the evidence or other material on which those findings were based, since it did not state its reasons in a manner that enabled the employer to understand the findings; and

* the AAT's decision was unreasonable and perverse.

Did the AAT Give Adequate Reasons?

The employer's complaints about the AAT's reasons, although put in a number of different ways, amounted to a submission that the AAT had failed to comply with the requirements imposed by s 43(2B) of the AAT Act. That sub-section provides as follows:

"Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

The general approach to the construction of s 43(2B) is reasonably well settled, although the application of the sub-section is not always easy: see generally H. Katzen, "Inadequacy of Reasons as a Ground of Appeal" (1993) 1 Aust J of Admin L 33. The relevant principles include the following:

* A substantial failure by the AAT to state reasons for its decision constitutes an error of law: Dornan v Riordan (1990) 24 FCR 564 (FCA/FC), at 573; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (FCA/FC), at 95-96, per Sackville J.

* The duty must be sensibly interpreted and applied, with a view to achieving good and effective administration. It is not necessary that reasons address every issue raised in the proceedings; it is enough that they deal with the substantial issues upon which the decision turns: Dornan, at 567-568; Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 (FCA/Wilcox J), at 481. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690, at 691:

"Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons exposed the logic of its decision, and contain findings on those matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with the requirement to include `findings on material questions of fact'."

* Regard must be had to the composition of the Tribunal which (as in the present case) does not necessarily include trained lawyers. Section 43(2B) does not require a standard of perfection: Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 (FCA/FC), at 157, per Sheppard J.

* A restrained approach to judicial review of AAT decisions is appropriate: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (New South Wales) [1980] FCA 96; (1980) 47 FLR 131 (FCA/FC), at 145, per Fisher J. The reasons of the AAT should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (FCA/FC), at 287, approved in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 271-272.

* The assessment is to be made having regard to the AAT's reasons as a whole: Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029, at 5032, per Lockhart J.

* Despite the above qualifications, if the AAT's reasons do not expose its reasoning process, in the sense that it does not enable a proper understanding to be obtained of the basis on which a decision has been reached, the decision involves an error of law: Australian Telecommunications Commission v Barker [1990] FCA 489; (1990) 12 AAR 490 (FCA/FC), at 492; East Finchley Pty Ltd v Federal Commissioner of Taxation (1989) 90 ALR 457 (FCA/Hill J), at 466-467.

In this case, the AAT summarised at considerable length the evidence given by the employee and the reports provided by the range of medical practitioners and other health professionals who expressed their views on the relatively minor injury the employee had sustained. However, mere recitation of the evidence, or "noting" that certain propositions have been put, does not satisfy the requirements of s 43(2B) of the AAT Act. In Dornan, for example, a report of 178 pages was held not to disclose the Tribunal's reasoning process sufficiently to avoid an error of law.

But the AAT's reasons are not limited to a summary of the evidence. The AAT found, consistently with the submission of the employer's own counsel, that the employee had given evidence that was "both unreliable and self-serving in parts". This was said to lead to a particular difficulty in attempting to ascertain the facts of the case. I construe these observations as intended to convey that the AAT could not rely on the employee's own account of events. That, of course, did not amount to a finding that the employee's evidence was false in all material respects. Rather, as I think a reading of the reasons as a whole suggests, the AAT considered itself dependent on the medical evidence to resolve the disputed factual questions. It took the view that its assessment of the medical evidence would have to take place largely, if not wholly, unaided by the employee's unreliable account of events.

On one important issue the medical evidence was not in conflict. As the AAT found, all doctors consulted had expressed the view that the employee had sustained an injury involving either damage to his paraspinal lumbar muscles and ligaments or aggravation of an underlying constitutional condition (par 33). This evidence supported the AAT's finding (par 36) that the employee did suffer such an injury as a result of an incident on 1 February 1996, although that finding obviously rested in part upon other evidence, such as the written report of 5 February 1996.

The AAT correctly identified the critical issue as the "severity and the rate at which recovery from the accident can be said to have occurred" (par 33). On this there was an apparent conflict of evidence. On the one hand, the AAT placed the findings of Dr Harvey-Sutton, Mr Stuckey and Dr Yeo (although Dr Yeo's report was prepared only shortly before 6 May 1996). On the other it placed the findings of Drs Stephen and Price.

Where conflicting medical evidence is presented, it will ordinarily be incumbent on the AAT to determine which evidence is accepted and which is not and to provide some reasoned basis for the choice: see Australian Postal Corporation v Wallace, FCA/Tamberlin J, 26 February 1996, unreported. Here the AAT did not simply express a preference from one set of medical opinions. It resolved the apparent conflict, in part, by giving "significant weight" to the actions and activities of Dr Finch as the treating general practitioner. The AAT clearly also took into account that Dr Harvey Sutton, in her examination of the employee on 19 March 1996, observed objective symptoms supporting the hypothesis that the employee had not then sufficiently recovered from the accident to resume duty.

The AAT also specifically addressed the fact that, on 4 March 1996, both Dr Stephen and Dr Price found that the employee was then able to resume work. The AAT's reasons explain these findings on the basis that both medical reports accurately reflected the employee's presentation on that day, but not his overall condition.

Whatever criticisms might be made of this reasoning, I do not think it can be said that the AAT has not exposed its reasoning process. The employer was enabled to discern what led the AAT to make the crucial finding that the employee continued to suffer the effects of the injury from 6 March 1996 until 6 May 1996. Indeed, I think it is precisely because the AAT's reasoning process is exposed that Mr Wallace, who appeared for the employer, was able to criticise the AAT's analysis, in particular its reliance upon the actions of Dr Finch. Be that as it may, I do not think that the criticisms (to which I shall return) warrant the conclusion that the AAT failed to comply with s 43(2B) of the AAT Act.

Unreasonableness

I have recently had occasion recently to address "unreasonableness" as a ground for judicial review: Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 69 FCR 28, at 59-61 (aff'd [1997] FCA 741; 147 ALR 608 (FCA/FC)). I shall not repeat what I said there, beyond noting that there is powerful support for the proposition that great care should be taken before setting aside a decision on the ground that it is unreasonable, in the sense of perverse, arbitrary or capricious.

Mr Wallace made several criticisms of the AAT's reasons. He submitted that it was perverse for the AAT to find that the employee was fit for work on 4 March 1996, yet unfit for the period 5 February 1996 until 6 May 1996. He further contended that there was no rational basis for relying on Dr Finch's views, since no finding had been made as to the truth of what she was told by the employee.

Doubtless not all decision-makers would have given such weight to Dr Finch's actions in certifying as to the employee's continuing unfitness for work. But that is not the same as characterising the approach as perverse or capricious. The employer chose not to cross examine Dr Finch. In my opinion, it was open to the AAT, having regard to the apparent conflict among the other medical practitioners (including Mr Stuckey), to draw the inference that Dr Finch had satisfied herself, after appropriate examination and reasonable inquiry, that the employee was unfit for work during the periods for which she issued certificates. Particularly is this so where there were objective indicators (as the AAT found) to support that view. Some decision-makers - perhaps many - would not have given Dr Finch's assessment such prominence, but I do not think that in the particular circumstances of this case it was perverse or capricious of the AAT to do so. Nor do I think it correct (as Mr Wallace submitted) that the AAT was not entitled to place weight on Dr Finch's actions because she did not prepare a report specifically for the proceedings. She provided certificates in the circumstances outlined by the AAT and the decision-maker was entitled to draw inferences from her actions.

Nor do I think that the AAT's approach to the reports of Dr Stephen and Dr Price can be characterised as unreasonable in the relevant sense. These opinions were apparently at odds with the views expressed by Dr Harvey-Sutton and Mr Stuckey. (I leave to one side Dr Yeo, whose views were perhaps less significant, having regard to the timing of his examination.) The AAT did not explicitly reject the opinions expressed by Dr Stephen and Dr Jones, but found that although they had accurately assessed the employee on that day, other factors had to be considered in assessing the duration of the employee's injury. It seems to me that it was open to the AAT to reach this conclusion, having regard, for example, to the objective indicators of injury later reported by Dr Harvey-Sutton and Mr Stuckey and the nature of the work the employee would have to perform if he were to return to his employment. Moreover, at least in the case of Dr Stephen, the opinion was expressed in somewhat equivocal terms, a matter the AAT was entitled to take into account.

The issue is not whether another tribunal of fact would have reached the same conclusion as the AAT, nor whether that conclusion was correct as a matter of fact. It is whether the AAT's findings can be said to be unreasonable. I do not think that the findings can be characterised in this way.

Other Issues

Mr Wallace made some other complaints about the AAT's reasoning. He submitted, for example, that the AAT had failed to take into account evidence that on a particular occasion the employee had driven a long distance in a motor vehicle. But the AAT specifically referred to the evidence that the employee had driven a vehicle and, I infer, took it into account in reaching its conclusion. Mr Wallace also submitted that the AAT had overlooked whether the employee was capable of giving doctors a reliable history. The AAT specifically found that the employee's evidence was unreliable and self-serving in part. It could hardly have overlooked that finding when analysing the medical evidence.

Conclusion

The appeal should be dismissed. The employer should pay the employee's costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated: 4 March, 1998

Counsel for the Applicant:	Mr J.H. Wallace
Solicitor for the Applicant:	Sparke Helmore
Counsel for the Respondent:	Mr L.T. Grey
Solicitor for the Respondent:	W.G. McNally & Co
Date of Hearing:	27 February 1998
Date of Judgment:	4 March 1998