Norton v Comcare [2002] FCA 1069 (29 August 2002)

Last Updated: 15 October 2002

FEDERAL COURT OF AUSTRALIA

Norton v Comcare [2002] FCA 1069

ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal affirming the decision of a delegate of the respondent refusing the applicant compensation for incapacity for work - back injury sustained by applicant during employment in Airport Fire Service - whether Tribunal's reasons are devoid of plausible justification - whether the Tribunal misapprehended its fact-finding role in reaching its decision - conclusion reached by Tribunal was open to it on the evidence

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 19

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1994-95) 183 CLR 273, cited

Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292, applied

JAMES LESLIE NORTON v COMCARE

No Q 144 of 2001

SPENDER J

BRISBANE

29 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 144 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	JAMES LESLIE NORTON APPLICANT
AND:	COMCARE RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	29 AUGUST 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 144 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	JAMES LESLIE NORTON APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	SPENDER J
DATE:	29 AUGUST 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") of 23 May 2001, whereby the Tribunal affirmed the decision of a delegate of the respondent, Comcare, given on 29 January 1996 refusing the applicant, Mr James Leslie Norton, compensation for incapacity for work. The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act").

2 On 1 November 1976, whilst employed in the Airport Fire Service, Mr Norton sustained an injury to his back. This injury was diagnosed by Dr Hefner in 1977 as "Disc injury of the L4,5 region", with Mr Norton suffering injury to the "intervertebral disc space above the lumbosacral junction". On 21 November 1977, Mr Norton lodged a claim for compensation for "aggravation of back injury previously sustained at work on 1.11.76".

3 Four years later, in 1981, Mr Norton was examined by Dr Baddeley, an orthopaedic surgeon, who found that there were only mild changes affecting the lumbar vertebra, which is evidence that the injury had at least lessened by this time. In December 1983, Mr Norton was again referred to Dr Baddeley because of persisting back pain. This time, Dr Baddeley diagnosed "chronic disc degeneration". By this time, however, a number of events had occurred which are of relevance to the back pain suffered by Mr Norton. They include his role in directing fire fighting operations at Darwin Airport, a sudden worsening of pain as he was getting out of a car, and regular brick laying work in building a home for himself and his wife.

4 During the period between 1983 and 1993, it appears that Mr Norton sought no medical consultation for his back problems, although he had chiropractic treatments between 7 May 1987 and 2 February 1991. In 1991, Mr Norton left the Fire Service and purchased a pizza shop on Norfolk Island, which he ran and operated with his wife. Some of the duties involved in running this business, such as mixing pizza dough, aggravated Mr Norton's lower back condition, resulting in the sale in 1994 of the business.

5 On 12 October 1993, Mr Norton lodged a further claim for compensation. On 16 February 1995, a payment of $7,798 was made to Mr Norton by Comcare for compensation for a ten per cent loss of function suffered by Mr Norton.

6 The claim the subject of this application was lodged on 7 June 1996 in the Tribunal, which claim sought review of a decision of an officer of Comcare, made on 15 April 1996, affirming a determination that Mr Norton was not entitled to weekly payments of compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). On 2 December 1998, the Tribunal (constituted by Senior Member Purcell, Miss Brennan and Dr Kennedy) determined the application adversely to the applicant. The Federal Court on 4 August 2000 allowed an appeal from the decision of the Tribunal and remitted the matter for rehearing to a differently constituted Tribunal for re-determination with liberty to receive further evidence.

7 The Tribunal in this instance was constituted by Senior Member Beddoe, as well as Dr Morley, a qualified medical practitioner, and Major-General Stein, AO. The Tribunal found that:

"... the applicant's 1976 injury has no current effect. It also finds, on balance of probabilities, that its effect had ceased some time after 1983 and by early 1987 at the latest.

It follows in our view that there is not and has not been for many years a material contribution by the 1976 incident to the applicant's present lower back condition."

The Tribunal affirmed the decision under review.

8 Two grounds of appeal were relied on before the Federal Court:

1. The Tribunal's reasons are in a critical respect devoid of plausible justification because of patent flaws in its reasoning.

2. The Tribunal misapprehended its fact-finding role in making findings only about the current disability of the appellant, and not in respect of the whole period covered by Mr Norton's claim.

9 The first ground picks up the observations of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1994-95) 183 CLR 273 at 290, where their Honours said:

"Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course."

10 The submission by counsel for the appellant focuses on "the analytical or logical manner in which the Tribunal dealt with the relevant contentious evidence which was chiefly expert medical evidence."

11 The Tribunal identified the medical issues examined by it being the "nature of the original injury, and its duration". In its reasons, the Tribunal set out what is described as a chronological condensation of the medical evidence, including the contemporaneously recorded history and examination findings of Mr Norton's original injury and his subsequent progress, and the respective opinions, such as had been provided by the medical witnesses in their numerous reports, and, where relevant, in oral evidence.

12 Having set out that history at some length, the Tribunal addressed the question of the intervertebral disc injury at one level above the lumbosacral junction. It noted that Dr Seaton and Dr Coffey opined that disc degeneration was caused by the injury, and Drs Marsden, Tuffley, Hazelton and Winstanley opined that a pre-existing disc injury was present and aggravated by the 1976 incident. It then concluded, on the balance of probabilities, that the applicant's 1976 injury aggravated a pre-existing disc injury at the level of one intervertebral disc level above the lumbosacral junction.

13 Concerning the duration of the original injury, the Tribunal noted that Mr Norton returned to Dr Baddeley in 1983 because of the persistence of his pain. The Tribunal referred to the evidence of the applicant about a worsening of his back pain after directing fire fighting operations in an incident at Darwin airport, and as well, the visit seems to have been after the incident of the sudden worsening of his back pain as he was getting out of a car. The Tribunal also noted that for about two years Mr Norton had been engaging regularly in his Saturday bricklaying work in the building of his house. The Tribunal accepted, and found, that "each of these could have, and probably did, aggravate his original disc injury ..."

14 The Tribunal then turned to the question of how long the effects of any such subsequent aggravation or aggravations had continued. The Tribunal noted that, in the decade from 1983 to 1993, according to records provided by the Hospitals Contribution Fund of Australia, Mr Norton required no form of medical consultation for his back problems.

15 In my opinion, the Tribunal erroneously recorded the evidence in relation to Mr Norton's chiropractic treatments. The Tribunal said at [59]:

"These records also show that he had 58 chiropractic treatments between 7 May 1987 and 2 February 1991, the majority (46) being in the year between 7 May 1987 and 21 May 1988 inclusive. What ever may have been the reasons for these treatments, this would be consistent with his back complaints having at least significantly lessened for nearly four years ie up until early 1987. The Tribunal had no evidence presented to it regarding the nature of any injury or illness suffered by the applicant over the ensuing 1987-1988 period during which he had chiropractic treatments, including whether or not they were for back pain complaints and/or incidents of injury; and, if so, whether any such complaints were relevant to, and either advanced or prejudiced the applicant's present case. This includes there being no reference to any incident or injury in this period in any of the medical reports from 1993 onward."

16 In the course of giving oral evidence before the Tribunal, Mr Norton said of the chiropractic visits:

"... all the McEwen ones with the chiropractor, and the Rainer chiropractor ones, that was all associated with the back."

And later he was asked:

"But the chiropractic - the chiropractor attendances all were?---Oh, well, the chiropractic is definitely all to do with treatment for the back."

17 However, while the Tribunal, in my opinion, erred when it said that there was no evidence that the chiropractic treatments over the ensuing 1987-1988 period were or were not for back pain, it was open to the Tribunal to conclude that:

"... over the ten-year period 1983 to 1993 the applicant's back complaints required no medical or surgical, including orthopaedic, review; ..."

and that:

"... at least until early 1987 they [the applicant's back complaints] were quiescent."

18 In my view there can be no doubt that the Tribunal assessed the evidence before it and reached a conclusion, which was supported by the evidence. It was open to the Tribunal to conclude that the report of Dr Seaton, to the effect that Mr Norton's long-standing back injury was aggravated by ongoing lifting and bending work, suffered from the absence of an estimate as to the period of time of that aggravation. While it may be possible to criticise the view of the Tribunal that Dr Tuffley "had no other support", based on an assessment that in fact there was support in the evidence of Dr Coffey, a finder of fact may accept the view of any expert, even if such view represents a minority opinion: Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292.

19 The conclusion that the effects of the 1976 injury had ceased at some time between 1983 and 1987 is a conclusion of fact which was open to the Tribunal on the evidence presented to it. In my opinion, it does not amount to the making of a decision in a manner so devoid of plausible justification that no reasonable person could have taken that course. While, naturally, Mr Norton disagrees with that conclusion, that disagreement about a factual conclusion is not sufficient to constitute an appellable error of law. The conclusion which the Tribunal drew was supported, in my view, by the evidence of Dr Hazelton which is summarised at [41] of the reasons of the Tribunal, by the evidence of Dr Marsden whose report is in the appeal papers, and by Dr Winstanley, whose evidence is referred to in [42] and [43] of those reasons.

20 Turning to the second ground, namely, that the Tribunal did not make findings about the whole period covered by Mr Norton's claim, the claim for compensation in its various manifestations goes back to an application on 12 October 1993. The essence of the claim is that the injury in 1976 resulted in an incapacity to work, and that that position continued up to the present. The Tribunal was not concerned with whether there may have been some incapacity in the period within ten or eleven years of the injury in 1976, which incapacity came to an end. The Tribunal's finding was that the applicant's injury had no current effect and "that its effect had ceased some time after 1983 and by early 1987 at the latest." This finding, in my opinion, is sufficient to dispose of the issue that was presented to the Tribunal.

21 In the course of oral submissions there was another issue which was hinted at. That issue touches on the question of whether, if there was any incapacity for work, it would prevent Mr Norton from engaging in suitable employment equivalent to his previous employment. That is not the basis on which the Tribunal reached its decision and was not a ground raised in the Notice of Appeal. For those reasons, it is unnecessary to consider this issue further.

22 For the above reasons, the application should be dismissed with costs, to be taxed if not agreed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 29 August 2002

Counsel for the Applicant:	Mr N. Thompson
Solicitor for the Applicant:	Poteri Woods Solicitors
Counsel for the Respondent:	Mr D. O'Donovan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	11 December 2001
Date of Judgment:	29 August 2002