Australian Postal Corporation v Murray King [1998] FCA 156 (12 February 1998)

Last Updated: 5 March 1998

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 452 of 1997

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	MURRAY KING Respondent
JUDGE:	DAVIES J
DATE OF ORDER:	12 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 452 of 1997

BETWEEN:	AUSTRALIAN POSTAL CORPORATION Applicant
AND:	MURRAY KING Respondent

JUDGE:	DAVIES J
DATE:	12 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal in relation to a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth). The Tribunal found in favour of the applicant and held that the respondent, the Australian Postal Corporation, was liable to pay compensation to the applicant for total incapacity during the period 1 August, 1995, to 31 October, 1995, and that the applicant had a 28 per cent whole person permanent impairment arising from a work related injury on 13 September, 1991. The Tribunal remitted the matter to the respondent to determine the applicant's entitlement to compensation as a result of the Tribunal's decision.

I do not propose to set out the facts in any substance to deal with the facts in details. This case, like others, involves a great deal of detail, but it is sufficient to say that in September, 1991, when he was working as a counter officer with the Australian Postal Corporation the applicant suffered an injury to his back as a result of lifting a heavy parcel. He was off work for a short time. Subsequently he took a position with the respondent as a sales representative. He gave evidence that, nevertheless, during 1992, his back remained sore, that he felt his duties were not doing his back any good, and that approximately every 12 months his back symptoms would flare. The applicant gave evidence that he attended the Volalo Rehabilitation Centre in 1993, where he was given traction, heat treatment, chiropractic manipulation of the spine and therapeutic exercises. He says that his back improved thereafter, but he still suffered from limited movement and lifting capability.

The applicant also gave evidence that in 1994 he became aware of stabbing pain and pins and needles inside his left buttock at the hip joint and the left leg. He consulted a Dr Chan who referred him to physiotherapy. In 1994, he had another flare up and he consulted a Dr Moss in October of that year. Towards the end of 1994, the applicant decided not to continue as a sales representative. There appears to have been a number of factors. The applicant said that the work troubled his back in a number of ways. He also suffered some stress in handling the work. He applied for a position with the Australian Postal Corporation as a postman. A report was made by the manager of the Penrith Delivery Centre recommending the transfer. The manager noted that the applicant was seeking transfer as he found the selling role too stressful and the manager reported that the applicant's problems in performing the duties of a salesperson were not unique and the role of interfacing with customers seeking their business, dealing with complaints and so on was not an easy task.

Before that recommendation was put into effect a voluntary redundancy was offered to the applicant and he took that redundancy. He was then self employed. He had had some interest in furniture manufacture and in car detailing. On 1 August, 1995, when lifting his child, his back went again and he then sought medical treatment. Certificates were ..... I think by Dr Moss, and his case before the Tribunal was that he was permanently incapacitated from 1 August 1995 to 31 October 1995.

I do not propose to go into all the medical evidence but the evidence which was accepted by the Tribunal and which the Tribunal was clearly entitled to accept was that the applicant had suffered an injury to his back in 1991 and that injury had caused or contributed to the event in August 1995. Dr Damon gave evidence that there was a definite probable connection between his 1991 workplace injury and his incapacity from August to October 1995. Dr Damon said that he believed the applicant had an initial tear of the annulus in 1991 and that this was a potential situation where further problems could occur with heavy lifting.

Dr Sloane reported that the applicant had had a soft tissue injury involving the muscles and ligaments of the lower back as a direct result of the incident described at work in March 1991 and that as a consequence of this he had suffered a permanent back injury when Dr Sloane reported in August 1996 which required the applicant to wear a brace even while working in a modified occupation. Dr Moss also put in a number of reports as did other medical practitioners.

The Tribunal found that the incapacity in 1995 was a sequelae to the injury of September 1991 and that the applicant had been totally incapacitated for work during the months of August, September and October 1995 and had suffered a permanent impairment to his back.

The argument put this morning concentrated principally on s 19(4), paragraphs (c) and (e) of the Safety Rehabilitation and Compensation Act. Those provisions read:

(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

........

(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

.........

(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

It was submitted, as it had been submitted in the Administrative Appeals Tribunal, that the applicant's employment with the Australian Postal Corporation as a salesperson was suitable employment, and it was submitted that in some way or other the fact that the applicant had accepted voluntary redundancy affected his position. In my opinion that submission misunderstands the operation of sub-s (4) of s 19.

The incapacity with which s 19 is concerned, is the incapacity for which compensation is being sought. That incapacity in the present case was the incapacity arising during August to October, 1995. It was not the incapacity which had arisen in September, 1991, for which the applicant had already received compensation. The position of salesperson for the Australian Postal Corporation was quite irrelevant. The applicant was not offered that position during August to October, 1995, nor was it suggested that there was any other position which was open to him which he failed to take up. The Tribunal found in fact that during that period the applicant was totally incapacitated for work, totally incapacitated. There was no other suitable employment available or relevant.

I should perhaps go on to add the submissions with respect to suitable employment were based upon the proposition that during his time as a sales representative the applicant had undertaken tasks for which there was no formal requirement of the job for him to do. He had to assist customers with whom he dealt, taking parcels from time to time to and from the premises. Counsel for the Australian Postal Corporation submitted that an employment does not become unsuitable simply because an employee decides to undertake tasks which he is not obliged to do. That was of course not the only matter which the applicant said in the course of his evidence made the work unsuitable. He had said that he had picked up parcels and taken them to and from customers' premises but he also said that he found that his back twisted from getting into and out of his car, and that this had caused problems. He said furthermore that he had found the work stressful and had difficulty in coping with it.

The Tribunal found that the work as a salesperson with the Australian Postal Corporation was not suitable work for the applicant. In view of the fact that the applicant had first of all sought other employment and had then accepted a voluntary redundancy to get away from the work as salesperson, it seems to me that this court could not say that there was any error in the Tribunal's finding. However, as I have said, in view of the Tribunal's finding that the applicant was permanently incapacitated, it seems to me that the question of suitable employment was irrelevant.

The next challenge that was put on the basis that the Tribunal did not give proper attention to the case against the applicant and failed to give any reasonable consideration to relevant factors. Reference was made to the evidence of a Ms Cameron who had also worked as a sales representative who had given evidence that bringing the mail back from the customer into the post office was not part of the job, although occasionally a sales representative would assist the customer. Ms Cameron also said that the applicant had never said anything to her about his back condition. Mr Lennon, a sales representative said that the applicant never complained to him that he was suffering from back pain. Mr Jocys gave evidence to like effect. Mr Shannon said it was not part of the sales representative's function to take materials to a client and certainly not the sales representative's duty to collect mail from a client.

It was submitted that this evidence was powerful evidence destroying the evidence of the applicant as to what he said he did in the course of his duties as a sales representative, and as to the effect those duties had upon his back. With respect to those matters, however, to matters of that type it seems to me it was only part of the evidence before the Tribunal which the Tribunal had to take into account. The Tribunal was confronted with medical evidence which stated that an injury had occurred from the lifting event in 1991 and that that injury had led to permanent impairment and was a cause of the incapacity suffered in August to October 1995.

Accordingly, the evidence that I have mentioned did not destroy the case. Counsel also put as another piece of evidence that it was alleged the Tribunal failed to give any proper attention to a medical certificate that the applicant had attended at the Pacific Medical Centres on 7 September, 1990, for treatment for right sided back pain. It appears from records of the Australian Postal Corporation that the applicant had seven hours away from work as a result of that event. It was noted on the medical certificate that the event was not work related. The applicant was cross-examined about this matter but said that he could not remember the event. It seems to me that that evidence did not destroy the applicant's case.

The medical evidence which was before the Tribunal related the impairment and incapacity to the injury which had occurred in September, 1991. The fact that there may have been a back problem of a minor sort in 1990, does not show that that injury did not occur in 1991. I should also say that the panel did not ignore any of these matters of which I have been speaking or the evidence given by the witnesses that I have mentioned. These matters were all debated at length in the Tribunal's decision, and it is clear that the relevant matters were taken into account.

The final matter which was raised by counsel for the Australian Postal Corporation was that, according to counsel, the Tribunal adopted a Browne v Dunn type approach when the Tribunal said:

"The Tribunal is mindful that counsel for the Respondent never put the question to the Applicant that his credit was at issue. The Tribunal accepts that the Applicant had some difficulty in remembering details of circumstances many years ago when he was faced with a very lengthy and extensive cross-examination by counsel for the Respondent. Taking all of these matters into consideration, the Tribunal is satisfied that the Applicant attempted to answer the questions put to him honestly, forthrightly and to the best of his ability. It follows that the Tribunal rejects the submission for the Respondent that the Applicant's evidence is not reliable and the Tribunal finds the Applicant to be a credible witness.

It is not clear to me that that passage has particular significance. Counsel for the Australian Postal Corporation had cross-examined the applicant at length, but had tended to put the case that the evidence, the applicant's evidence was unreliable rather than putting the case in a confrontationalist way by saying that the applicant was deliberate untruthful. In his address, counsel for the applicant had said:

"We say firstly for various reasons the applicant's evidence is not reliable and there are many instance which would cause anybody that has the duty to decide according to the evidence to doubt the veracity of the evidence but in any event to find the evidence is not reliable."

It may be that all the Tribunal was meaning in paragraph 53 was that it accepted that the applicant was giving the evidence as to he could remember it. The Tribunal, however, did not put out of it's mind other considerations and noted on pages 5, 6 and 9 that:

"The Respondent submitted that these points demonstrated that the Applicant was not only inconsistent in his answers to questions put to him during his testimony, but also demonstrated that the Applicant was at times evasive and prepared to exaggerate his circumstances, or consciously manipulate or conceal the factors in respect to his circumstances, so as to assist his case for compensation."

I see no question of law arising out of these matters. I think that an experienced lawyer would have expressed the point that the Tribunal was making in a different way, but this is an appeal from an Administrative decision. The Administrative Appeals Tribunal has members who are not lawyers, and the members constituting the Tribunal in the present case was not a lawyer.

I do not favour the application of the Browne v Dunn principle, except in pretty clear cases, and I certainly am of the view that it is not an appropriate principle for proceedings in administrative tribunals. I doubt that I would have expressed the first sentence in paragraph 53 in the terms the member did, but the Tribunal member was the decision-maker of fact. The facts were for him, and he had to go about the task of decision making in his own way.

The application will be dismissed with costs.

Printed on 13 February 1998 at 4:09pm [LCB]