McAuliffe v Comcare [2002] FCA 769 (17 June 2002)

Last Updated: 12 July 2002

FEDERAL COURT OF AUSTRALIA

McAuliffe v Comcare [2002] FCA 769

WORKERS' COMPENSATION - Commonwealth employees compensation - compensation for permanent impairment - whether impairment of shoulder and incapacity for work "resulted from" injury sustained during course of military service - application of the Safety Rehabilitation and Compensation Act 1988 (Cth) to injury occurring prior to the commencement of that Act - Tribunal determined that the respondent was not liable for ongoing workers' compensation although determined that the respondent was liable for loss of 10 percent of efficient use of the applicant's shoulder - whether Tribunal's reasons for the decision are inadequate - whether there was "no evidence" to enable the Tribunal to find that a subsequent event injuring the applicant's shoulder was a "new incident" - whether the Tribunal took into account irrelevant considerations in so far as it found that his psychological and alcohol problems were a significant cause of his impaired incapacity for work.

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2A), 43(2B), 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 24, 27, 29, 124

Brennan v Comcare (1994) 122 ALR 615 applied

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 followed

Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 cited

State of Tasmania v Robertson (2001) 10 Tas R 60 cited

Telescourt v Commonwealth (1991) 29 FCR 227 cited

Dornan v Riordan (1990) 24 FCR 564 cited

Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 cited

Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 applied

BRUCE FRANCIS McAULIFFE v COMCARE

Q 80 OF 2001

DRUMMOND J

17 JUNE 2002

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 80 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	BRUCE FRANCIS McAULIFFE APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	17 JUNE 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed and the Administrative Appeals Tribunal's decision, in so far as it affirms the decision of the delegate of the respondent that the respondent is not liable to the applicant for ongoing workers' compensation, be set aside.

2. The case be remitted to the Administrative Appeals Tribunal, differently constituted, but only for redetermination, with or without further evidence, of the issue whether the respondent is liable to the applicant for ongoing workers' compensation.

3. The respondent pay the applicant's costs of and incidental to the appeal, including reserved costs if any, to be taxed.

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 80 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	BRUCE FRANCIS McAULIFFE APPLICANT
AND:	COMCARE RESPONDENT

JUDGE:	DRUMMOND J
DATE:	17 JUNE 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal under s 44 the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") in proceedings brought by the applicant, Mr McAuliffe, against the respondent, Comcare, under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act").

2 Mr McAuliffe made a claim in March 1996 in respect of total incapacity that he said had developed after a fall in 1994. The claim was based on an injury in 1971, the only injury ever suffered by Mr McAuliffe while he was in Commonwealth employment. After ceasing that employment in 1972, he then worked until 1994 in a variety of private employments.

3 It is not in dispute that Mr McAuliffe suffered an injury arising out of, or in the course of, his military service, viz, a soft tissue injury to his right shoulder as the result of a fall on 14 September 1971. Nor is it in dispute that, as a result of that fall, Mr McAuliffe by 1996 had suffered a permanent 10 percent loss of efficient use of the right arm at or above the elbow and a 10 percent whole person impairment because of his shoulder condition: this assessment was made by a delegate of Comcare on 23 October 1996 in consequence of Mr McAuliffe's 1996 claim. The delegate then also assessed the total amount of compensation payable in respect of this impairment at $4,798.40, an amount which was paid to Mr McAuliffe. Following the making of his claim in 1996, Mr McAuliffe applied for and, from 4 September 1996 until 18 August 1999, received fortnightly incapacity payments of compensation pursuant to a delegate's determination of 4 September 1996. Certain medical costs were also paid. All these payments came to an end when, on 21 July 1999, a delegate of Comcare determined that, despite the impairment Mr McAuliffe suffered as a result of his work injury in 1971, he was not incapacitated for work because of that injury after 14 January 1972. That delegate also determined that Mr McAuliffe had no entitlement to any benefits, including pharmaceutical costs, medical treatment and household and attendant care. The delegate advised:

"Although you had no entitlement to compensation after 14 January 1972 the Department will continue to pay you incapacity payments until 18 August 1999 (28 days from the date of this letter) ...

Please note that, at this time, there is no intention of recovering compensation already paid to you in relation to your right shoulder claim."

4 The delegate accordingly revoked the first determination made in Mr McAuliffe's favour on his 1996 claim and all subsequent determinations. On 25 January 2000, another Comcare delegate affirmed this determination of 21 July 1999 following Mr McAuliffe's request for its reconsideration. Mr McAuliffe appealed this decision to the Tribunal.

5 The Tribunal by its decision made the following orders:

(i) Set aside that part of the decision under review relating to permanent impairment and restore the decision that there was a liability for loss of 10 percent of efficient use of Mr McAuliffe's shoulder since before 1 December 1988;

(ii) Affirm the decision that Comcare is not liable for ongoing workers' compensation.

6 Comcare does not challenge the Tribunal's determination that Mr McAuliffe had suffered, as a result of his 1971 injury, a permanent partial loss of function of the right shoulder. But it supports the Tribunal's determination that nevertheless, it is not liable to make any ongoing workers' compensation payments.

7 An appeal to this Court from the Tribunal's decision is confined to correcting errors of law by the Tribunal. Mr McAuliffe does not therefore seek to challenge the correctness of the findings of fact made by the Tribunal. The errors of law Mr McAuliffe says were made by the Tribunal in reaching its determination are as follows:

(1) It is said that the Tribunal's reasons for decision are inadequate, in particular because the Tribunal did not adequately include its findings on material questions of fact with sufficient reference to the evidence or other material on which those findings were based. Reference was made to ss 43(2), (2A) and (2B) the AAT Act. It was said in particular that the Tribunal did not set out the relevant legal principles and statutory provisions governing the case and that it failed to identify the evidence it accepted from the mass of evidence before it in concluding that the 1994 incident was a new incident of such severity that it caused Mr McAuliffe's subsequent incapacity and failed to explain why it rejected evidence capable of supporting a finding that his incapacity, since March 1996, was a result of the 1971 injury.

(2) It was said that there was no evidence to enable the Tribunal to find that Mr McAuliffe's 1994 incident was "a new incident".

(3) It was finally said that the Tribunal, in concluding that despite his shoulder injury Mr McAuliffe had no incapacity for work, took into account irrelevant considerations in so far as it found that his psychological and alcohol-related problems were a very significant cause of his impaired capacity for work.

8 The Tribunal gave the following written reasons for its decision:

"3. It is Mr. McAuliffe's claim that his current right shoulder problems were materially contributed to by a fall he had while he was in the Australian Army in 1971. In 1971, during the course of Army activities, he fell while crossing a road and dislocated his shoulder. The shoulder reduced spontaneously, or very soon after it was dislocated. Shortly thereafter Mr. McAuliffe left the Army.

4. Between 1972 and 1994, Mr. McAuliffe worked in mining camps, operated drilling rigs, ran his own business, supervised drilling rig operations and other engineering activities in Australia, South East Asia, Sumatra and New Guinea.

5. The applicant also injured his right shoulder in 1972, 1979 and in 1994 in the following circumstances:

(i) In 1972 he was involved in a motor vehicle accident in which his right shoulder was bumped but did not dislocate.

(ii) In 1979 he was working in Western Australia, supervising a kitchen. He was carrying a box of tomatoes when his right shoulder dislocated as a result of the way in which he was carrying the tomatoes. It reduced soon after the dislocation.

(iii) In 1994 Mr. McAuliffe was fishing, slipped on some rocks and fell and dislocated his shoulder. There is a question as to whether he fell on some rocks or whether he fell into water with a sandy bottom. He originally stated that he fell on rocks but in his evidence to the Tribunal he said that he fell into shallow water with a sandy bottom.

6. The applicant claims that after the 1994 incident his shoulder has given him such continuous pain that he has been unable to work since, and that is the basis for his claim for workers' compensation.

7. The applicant claims that the 1971 incident which occurred whilst he was in the Army made his shoulder vulnerable to the incident which occurred in 1994. That is, that his current right shoulder problems can be directly traced back to the 1971 incident.

8. In 1997 the applicant had an operation to refix his shoulder, scrape it out and clean it up. However, the applicant complains that the pain is still there. He claims that it is the pain which prevents him from using his arm sufficiently well to enable him to work.

9. The medical evidence is to the effect that the 1971 incident would have left him more susceptible to later dislocations, but it is impossible for the doctors to be able to assess to what degree of contribution each of the dislocations has had on his current condition. It is accepted by the doctors that Mr. McAuliffe now suffers from a rotator cuff syndrome and some arthritis. Apart from the dislocations, there are other factors which are significant in the development of his current condition, such as wear-and-tear, age, personal constitution and diet.

10. Mr. McAuliffe claims that he has a total incapacity for work. That proposition is not supported by the orthopaedic surgeons. They say that Mr. McAuliffe could do work that did not involve heavy lifting with his right arm. The fact of the matter is, of course, that he ran his own company for many years and was involved in supervisory roles for almost 20 years prior to 1994.

11. The question of Mr. McAuliffe's incapacity for work is further complicated by the fact that he has been treated from the early 1990s for psychological problems. He has also had an alcohol abuse problem for about 25 years. He has been admitted in recent years to a detoxification unit in Cairns. This no doubt plays a part in his inability to work.

12. It is my view that although the 1971 incident may have made Mr. McAuliffe more susceptible to later dislocations, the fall in 1994 was a significant incident. Mr. McAuliffe had been able to work prior to 1994 but he was not able to work afterwards, he says. Under the circumstances I find that the correct version of the 1994 incident was that given by Mr. McAuliffe in his original statement, namely, that he fell on rocks, and not the version that he gave at the hearing, that he fell into shallow water with a sandy bottom.

13. The 1994 incident was of such severity that it was a new incident which caused the damage about which the applicant now complains, along with the other non-Army related matters mentioned above. The 1994 incident did not merely cause an aggravation of the 1971 injury. Consequently, I find that the 1994 incident and the subsequent injury to Mr. McAuliffe's right shoulder were not related to his work in the Australian Army.

14. I further find that Mr. McAuliffe does not have an incapacity to work due to his shoulder. It is only a 10 per cent incapacity. I do not accept that this is the reason why he is not working. His psychological and alcohol problems play a very significant part in his current unemployed situation.

15. I find that the applicant would have had some residual permanent impairment from his 1971 injury and that he has been adequately compensated for that."

9 Since Mr McAuliffe's claim was based on the injury he suffered in the Army in 1971, his entitlement to the compensation here in question is governed by s 124 of the 1988 Act. At the time Mr McAuliffe suffered his 1971 injury, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) was in force. Part X of the 1988 Act, which includes s 124, is not concerned with the preservation of the 1971 legislation in respect of rights and liabilities accrued thereunder, but rather with the creation and substitution, from the commencement of Pt X of the 1988 Act on 1 December 1988, of new rights in respect of past events: Brennan v Comcare (1994) 122 ALR 615 at 623 - 624. Section 124 contains provisions, such as sub-sections (2) and (3), which deny compensation in certain circumstances to a person injured in Commonwealth employment when the 1971 Act was in force. It was not, however, suggested that any of these exclusionary provisions apply in respect of Mr McAuliffe's claim. Nor was it disputed by Comcare that compensation would, in terms of s 124(1A), have been payable to Mr McAuliffe in respect of his 1971 injury under the 1971 Act.

10 It follows that Mr McAuliffe's 1996 claim for compensation in respect of household assistance is governed by ss 14 and 29 of the 1988 Act; for periodic compensation by ss 14 and 19 of that Act and for compensation in respect of his permanent impairment by ss 14, 24 and 27 of the 1988 Act. (The claim for costs of medical treatment needs to be dealt with separately.)

11 As appears from these provisions, it is only if the 1971 injury has "resulted" in incapacity for work or in impairment of bodily function or in the obtaining of household assistance that Mr McAuliffe would be entitled to any of the compensation he claimed in 1996 in respect of that old injury. I take the principle to be applied in determining whether the 1971 injury resulted in these detriments for Mr McAuliffe to be that stated by the Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 - 464:

"The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase `results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death `results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death `results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death `resulted from' the work injury which is impugned."

12 See also Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6 and State of Tasmania v Robertson (2001) 10 Tas R 60 at 66.

13 I have set out above the two orders that the Tribunal made in disposing of Mr McAuliffe's appeal to it. By its first order the Tribunal determined that Comcare was under a liability to Mr McAuliffe in respect of his 10 percent shoulder impairment "since before 1 December 1988". That is the date of commencement of the relevant provisions of the 1988 Act. This order is explained by s 124(1A) of the 1988 Act and the decision in Brennan v Comcare. This decision also establishes that s 124 of the 1988 Act is applicable to a case like this where a person injured before 1 December 1988 did not suffer an immediate impairment, but the injury resulted in an impairment after the 1988 Act came into effect: see pp 619 and 630. In such a case, the pre-1988 injury, if work-related, is the foundation for the person's entitlement to compensation for causally related post-1988 consequences, even though those consequences may consist of pathological and other conditions different in kind from the pre-1988 injury. Cf State of Tasmania v Robertson at 64 - 65 and Telescourt v Commonwealth (1991) 29 FCR 227 at 229. The Tribunal's first order can, I think, only be understood as a ruling that Comcare is liable to Mr McAuliffe for the 10 percent loss of function of his shoulder that, on the evidence, only developed after 1994 because that impairment "resulted from", ie, was causally related to, the 1971 injury, the only injury Mr McAuliffe suffered in Commonwealth employment.

14 All the specialist medical evidence pointed to that being the position. On 19 June 1996, Comcare retained an orthopaedic surgeon, Dr W Thomas, to report on Mr McAuliffe's condition. Dr Thomas, on 4 July 1996, said of Mr McAuliffe's 1971 injury:

"From what we are led to believe, it would appear that this man had a significant soft tissue injury to the right shoulder region at that time."

15 Of the subsequent injuries to his right shoulder he suffered after leaving his Commonwealth employment, in 1972, 1979 and 1994, Dr Thomas said:

"No doubt these would be considered to be aggravating factors."

16 Dr Thomas then assessed Mr McAuliffe as having a "10% loss of function of right upper limb". Dr Thomas also commented on his condition as at July 1996:

"He would be able to do work of at least a moderate and light to moderate nature on a consistent basis, particularly if his arm is not subject to excessive stresses or strains, or working with his upper limb in awkward positions for any length of time."

17 On 27 August 1996, a delegate of Comcare informed Mr McAuliffe that, on the basis of Dr Thomas' report already referred to, "it is apparent that you suffer a loss of efficient use of 10 % as a result of your compensable injury. As a result, the total amount payable to you is $4,798.40". The delegate went on to advise Mr McAuliffe of the various courses of action open to him and that, if he wished to claim compensation in the amount indicated under the 1988 Act, as distinct from pursuing other remedies in respect of the 1971 injury available to him: "A formal determination and assessment of the amount of compensation payable to you will be made when you tell us what you want to do". It appears that Mr McAuliffe elected to seek compensation under the 1988 Act. On 23 October 1996, a delegate of Comcare informed Mr McAuliffe that he had determined that Mr McAuliffe had suffered the 10 percent loss of efficient use and a whole person impairment of 10 percent as a result of his compensable injury in 1971. The delegate further advised that the total amount of compensation payable had been assessed at $4,798.40 "which will be paid to you within 30 days of the date of this letter".

18 On 20 June 1997, Comcare wrote to a sports medicine specialist, Dr P Friis, referring to Mr McAuliffe's "accepted compensation claim for a right shoulder condition", to the Department's liability to pay the reasonable cost of medical treatment for this condition and seeking from Dr Friis a report and prognosis. On 10 July 1997, Dr Friis reported:

"The signs and symptoms were consistent with rotator cuff pathology secondary to glenohumeral instability. To assess this further a M.R.I scan was requested. The report is enclosed. This confirms the pathology to the rotator cuff and glenohumeral joint. I believe that these findings are not adequately explained as wear and tear. It is probable that the instability episodes in the past contributed to the rotator cuff pathology and glenohumeral pathology."

19 Dr Friis recommended that surgical options be explored and suggested referral to an orthopaedic surgeon, Dr James Fardoulys. This was done and, on 22 August 1997, Dr Fardoulys reported to Comcare that:

"Mr McAuliffe has problems with his right shoulder which date back to dislocations, the first of which occurred in 1971 when in the Army. I think his subsequent problems are secondary to this. He has had other episodes of dislocation, the latest of these giving him severe pain in the shoulder. I note from his MRI scans that he has injuries to the rotator cuff and these would be consistent with the history he gave of his injuries and the clinical findings on examination."

20 Dr Fardoulys recommended investigation of Mr McAuliffe's shoulder under anaesthetic. He operated on Mr McAuliffe's shoulder in September 1997. In his report to Comcare of 3 August 1998, he commented:

"Inspection of the glenohumeral joint showed some early osteoarthritic changes and old injuries to the labrum. The labrum itself was stable and examination under anaesthetic was stable."

21 Dr Fardoulys performed an acromioplasty on the right shoulder, noted the persistence into April 1998 of pain, observed that further surgery was not indicated but that some benefit could be obtained from a pain management program (that Mr McAuliffe subsequently undertook). He concluded by saying:

"His current level of incapacity according to table 9.1, would be 10% corresponding to loss of less than half the normal range of movement of shoulder to elbow."

22 On 28 June 1999, a delegate of Comcare wrote again to Dr Thomas after having arranged for the latter to further examine Mr McAuliffe for the purposes of making "a complete reassessment of his right shoulder condition". On 5 July 1999, Dr Thomas reported, after having again examined Mr McAuliffe a few days previously. He answered a number of specific questions posed by Comcare. His opinion was sought as to whether, on the balance of probability, as distinct from possibility, the cause of Mr McAuliffe's current shoulder condition, was, among other things:

"2.(a) The fall on 14 September 1971? [or]

(b) The combination of motor vehicle accident of 1972, the tomato box carrying incident of 1979, falling on the rocks in 1994 and over 23 years of heavy work? [or]

(e) The natural progression of some preexisting or underlying condition?"

23 To these questions, Dr Thomas answered:

"2.(a) Possibility.

(b) There would be no doubt that various injuries he has sustained over the years plus, no doubt, other work-related factors have resulted in the severity of his problems at the present time.

(e) No doubt this is also a factor with regard to the present pathology."

24 In answer to question 3: "What restrictions, if any, are imposed on Mr McAuliffe's capacity for employment, only as a result of any effects caused by the fall on 14 September 1971 on his right shoulder?", Dr Thomas responded:

"All other things being equal, this man should have made quite a reasonable recovery from his original injury and been able to do work of at least a moderate type on a consistent basis over the years. It is recognised, of course, that some cases, where a shoulder has been dislocated, do develop recurrent dislocation due to subsequent trauma."

25 Dr Thomas ultimately answered question 4: "Is Mr McAuliffe totally incapacitated for work by the effects of the fall on 14 September 1971 on his right shoulder?" in the negative.

26 By question 5, Comcare asked: "Is Mr McAuliffe totally incapacitated for work by the effects of the combination of motor vehicle accident of 1972, the tomato box carrying incident of 1979, falling on the rocks in 1994, over 23 years of heavy work, and the alleged assault of 3 November 1997 etc on his right shoulder?". Dr Thomas responded:

"I do not really feel that he is totally incapacitated and, no doubt, given the right degree of perseverance and motivation, and some conservative treatment from time to time, he could do work of a light nature on a consistent basis, with the ability to do some more moderate activities on a part-time or casual way."

27 He assessed Mr McAuliffe's current total percentage loss of efficient use of his right arm resulting from injury to his right shoulder as "10% in accordance with Table 9.1. 10% in accordance with Table 9.4".

28 The delegate then made the determination that has given rise to this litigation. On 6 September 1999, Mr McAuliffe sought reconsideration by Comcare of the delegate's decision. Apparently at the suggestion of Comcare's delegate charged with conducting the review, Mr McAuliffe obtained a report from another orthopaedic surgeon, Dr David Shepherd. On 19 October 1999, Dr Shepherd reported:

"This man dislocated his shoulder in his fall with the Army in 1971. He has had two further dislocations. I believe that at the time of his fall in 1971, he would have sustained damage to his glenoid labrum. I note that Dr Fardoulys found some damage to this glenoid labrum at the time of his surgery in 1997. His current symptoms, specifically symptoms of a painful arc at mid elevation, are due to rotator cuff syndrome. His fall in 1971 would not have helped his rotator cuff syndrome, but I do not believe that it was the direct cause of it either. Dr Fardoulys also found some degree of osteoarthritic change in his shoulder, though I believe this has remained asymptomatic. It is probable that his fall has contributed to some degree to the osteoarthritic change in his shoulder. I believe his fall in 1971 was the direct cause of the shoulder dislocation which occurred at that time. I believe that it is also the major contributing factor to his two further dislocations."

29 In an addendum to this report, also apparently obtained by Mr McAuliffe at the suggestion of the delegate, Dr Shepherd, after considering Dr Thomas' report of 4 July 1996, wrote:

"My report of 19.10.99 states in brief that I believe Mr McAuliffe dislocated his right shoulder in 1971. His fall was the direct cause of that dislocation and I believe the major contributing factor to the dislocations which occurred in 1979 and in 1994. I believe that the fall in 1971 may also have contributed to the osteoarthritic change detected in Mr McAuliffe's right shoulder by Dr Fardoulys at his arthroscopy in 1997. I believe Mr McAuliffe's current symptoms are simply of rotator cuff syndrome which is not a direct result of his fall in 1971. Dr Thomas does not state things in such plain language, but I believe that his comments are largely similar to mine."

30 On 25 January 2000, Comcare's delegate affirmed the earlier determination.

31 Dr Fardoulys gave this testimony at the hearing in response to questioning by Mr McAuliffe and then by Comcare's counsel:

"[By Mr McAuliffe:] One of the things that was explained to me was that, because of the nature of the dislocation in the first instance in 1971, it would have left the shoulder in a condition - for the shoulder to dislocate, it would have had to either stretch and/or tear the soft tissues which would have left the shoulder in a state of sublocation, I think is the term, or loose and weak. Is that a fair comment?---Yes. What happens is that the initial dislocation - something has to tear or give to allow the shoulder to dislocate, and, you know, it's well documented that that just doesn't heal, so although a shoulder may function or not be dislocated in the interim, it increases your risk of being dislocated, so in 1971 you are going to be about 21 years old, so the literature would say that, in that age group, the risk of it happening again is about 90 per cent, at some stage further down the track.

...

[By Comcare's counsel:] Yes, that's the point I was getting to. And the third dislocation may have not been in any way causally related to the first or, indeed, the second, because of the nature of the fall involved?---If that was your only history - the `94 one, then it could have done it by itself. If you have got a previous history of dislocations, then you would have to say that the pre-existing damage to those tendons is going to be the - the main cause of - of it coming out again.

...

If we work backwards, Mr McAuliffe, having suffered this `71 injury - dislocation - - - ?---Yes.

- - - may have been predisposed to another dislocation at some time; however, that may never have eventuated, but for an incident where he was carrying a box in a particular way. He could have went through life without one, theoretically?---I think you're saying that, you know, the development with the tomatoes thing contributed to his instability - I don't - I mean, the majority happens on the first episode. The first episode is when they do most of the damage but then predisposes them subsequently in life, having an unstable shoulder, and, yes, the, you know, subsequent episodes might add to that, but really, in all, the instability part of it, all starts with the first episode.

But the instability when suffered - - - ?---Yes.

- - doesn't immediately necessarily result in need for treatment or - except in the acute phase - or any incapacity for work, in a 20 year old man?---Not in a young person it mightn't.

So, still working backwards, we then look at the 1994 incident. We know that it has had the most dramatic effect on his capacity for work, according to him, and his need for treatment. Without that 1994 fall, he may have been able to continue on for years in normal employment, notwithstanding any instability caused in `71?---Yes, if he doesn't fall in `94 and injure himself.

Yes. So, in the absence of the fall in 1994, it was perhaps on balance, given that he continued to work through from `71 to 1994, more than likely he would have continued to work?---Yes." (emphasis added)

32 Dr Thomas, in cross-examination by Mr McAuliffe, gave the following evidence:

"I presume you mean on that that because of the effect of the original injury, that there would be some slow deterioration regardless of whether there have been any subsequent dislocations?---Well, yes, but also people's shoulders wear out. It varies from person to person and some people suffer and some people don't, and - so you can get problems, and people that have had serious injuries to their shoulders in the past are more liable to get problems earlier than other people; about all one can say there.

...

Yes, okay, fine. Just moving on a little bit from that question 2 which was asked, `What is the cause of the condition on the balance of probability and possibility'. Although you never used either the words probability or possibility, you said that, `From what we are led to believe, it would appear that the man has a significant soft tissue injury to the right shoulder region at the time'. Now, is that answering in the affirmative as in probable?---Yes - well, it's playing a part. From what we, you know, as I say, when you've dislocated your shoulder, you've definitely damaged the soft tissues and so that could well play a part in the development of the latest problems.

Yes. Just - - -?---Having a residual disability at this time, would relate also to other injuries and other ageing processes, etcetera, that have occurred. In other words, the present problem is not entirely due to that particular injury.

...

Okay, that's fine. So you go on in question number 3 which you've answered in the affirmative which definitely states that aggravation, and then further to that, the next question is the effect, in your opinion, was it of a permanent nature, and you've answered, `Yes, definitely'. The definition of permanent obviously was supplied to you by the department; would you say that, in the case of the 1971 accident, there would have been some permanent effect as in stretching and tearing of the muscle?---Oh, yes. Yes, what I say, yes, it could have had a permanent effect, yes.

...

Yes, but the question actually says `pre-existing or underlying condition' and - - -?---Yes. Well, it is recognised that some people that do get recurrent dislocations are more susceptible to get that, you see, and there could be a, sort of, constitutional reason why that happens. That's why we mention it as a possibility.

...

So if we accept the fact that the 1971 injury would have left the shoulder in a stretched condition which would have been subject to ongoing susceptibility of further dislocations, would that effect in 1971 actually - is quite accepted that it would have been continuing and it could have subsequently caused or contributed to a material - - -?---Oh, it's contributed to - you know, that's all we can say.

So it has actually - - -?---And so the words you - you were one of those cases that were more likely to develop problems than if you hadn't have had that original injury." (emphasis added)

33 The expert medical evidence was all to the effect that, by 1996, the condition of his shoulder was such that he had a permanent impairment, viz, a 10 percent loss of function of his right upper arm and a consequent 10 percent loss of bodily function, and that his 1971 injury had made his shoulder more susceptible to subsequent injury of the kind he suffered between 1972 and 1996. The Tribunal understandably accepted all this evidence. It is the basis upon which it made its first order as to Comcare being liable for this impairment.

34 The second order the Tribunal made limits the extent of that liability; it was to the effect that, notwithstanding that the post-1994 impairment of Mr McAuliffe's shoulder was sufficiently linked to the 1971 injury to make Comcare liable for that impairment, Comcare is nevertheless not liable for ongoing workers' compensation in respect of periodic payments under s 19, household assistance under s 29 and costs of medical treatment under s 16.

35 By its determination of 23 October 1996, Comcare's delegate appears to have made a final determination under s 24 in respect of Mr McAuliffe's 10 percent permanent shoulder impairment. He received the amount determined as payable in respect of that impairment and there is no suggestion that that particular determination did not include a component for non-economic loss pursuant to s 27 or that it was only an interim payment under s 25. The Tribunal by its orders did not disturb this determination by Comcare. In accepting that Mr McAuliffe was entitled to compensation under s 24 in respect of this impairment, the Tribunal noted "he has been adequately compensated for that", ie, by the lump sum payment.

36 By its second order, the Tribunal disposed of the main issues litigated before it. The Tribunal gave two separate reasons for rejecting, by this order, the claims by Mr McAuliffe for ongoing compensation.

37 Firstly, in par 13, it found that "[t]he 1994 incident was of such severity that it was a new incident which caused the damage about which the applicant now claims, along with the other non-Army related matters mentioned above". It also here specifically found that "the 1994 incident and the subsequent injury to Mr. McAuliffe's right shoulder were not related to his work in the Australian Army". That is, the Tribunal here found that the 1994 incident was not causally related to the 1971 injury and that it, with his psychological problems and alcohol related problems referred to in par 11, was the cause of his claimed total incapacity for work.

38 Its reasoning here is flawed with error of law. The Tribunal could not make the unqualified finding that the 1994 incident and the injury Mr McAuliffe then suffered to his shoulder was not related to his Army employment: that is inconsistent with the findings set out in par 15 of its reasons and incorporated in its first order that, by 1996, he had a 10 percent permanent impairment for which Comcare was liable because, though that was the end result of a number of injuries including the 1994 incident and a number of other matters, that impairment was causally related to and thus the "result" of the 1971 work injury.

39 The Tribunal must therefore have made an error of law in finding that the injury Mr McAuliffe suffered in 1994 was not related to his Army service. That error may be found in its failure to take into account the mass of evidence already referred to, and the conclusion it itself reached on that evidence that is incorporated in the Tribunal's first order, that the 1994 injury, though a cause of the 10 percent permanent impairment, was not a sufficiently new incident to break the causal link between the work-related 1971 injury and his residual post-1994 permanent impairment. But it is sufficient to hold that by failing to explain its reasons for concluding that the 1994 injury was not related to Mr McAuliffe's army service amounts, in the circumstances of this case, to an error of law constituted by breach by the Tribunal of its duties under ss 43(2), (2A) and (2B) the AAT Act. The Tribunal's reasons contain no explanation capable of enabling Mr McAuliffe to understand why the Tribunal made order 2 on this particular basis. Cf Dornan v Riordan (1990) 24 FCR 564 at 567 - 568 and Rich Rivers Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 22 FCR 437 at 444.

40 This error is a material one. It infects the first ground on which the Tribunal based its decision in its second order to reject Mr McAuliffe's claim for ongoing compensation. Prima facie Mr McAuliffe is entitled to have the case sent back to the Tribunal for redetermination on the question of whether he has an ongoing entitlement to compensation. But before that can be said to be the proper outcome of this appeal, the Court must consider whether the Tribunal's second order can be supported by the other, separate basis for that order that the Tribunal identified.

41 In par 14, the Tribunal identified a separate basis for rejecting Mr McAuliffe's claim for ongoing compensation. It appears here to have assumed, contrary to its conclusion in par 13, that his permanent impairment of 10 percent was linked to the 1971 injury, but was of such a minor level that his psychological and alcohol problems were of themselves sufficient to explain why he was not working. It had, in par 11, made brief findings that he had "psychological problems", not identified other than by the comment that he had been treated for them "from the early 1990s" and "an alcohol abuse problem for about 25 years". It also took into account, in arriving at this conclusion, Mr McAuliffe's capacity to engage in full-time employment for the twenty-two years following the 1971 fall until the 1994 fall (pars 4 and 10), that it was only following his 1994 fall that Mr McAuliffe contended that he was in such pain as prevented him from working thereafter (pars 6 and 8), and that the 1994 fall involved more serious injury than Mr McAuliffe suggested at the trial (par 12).

42 But I do not think the Tribunal has here complied with its duties under ss 43(2), (2A) and (2B) the AAT Act to explain how it came to its second basis for rejecting the claim for total incapacity for work. In par 11, the Tribunal noted that Mr McAuliffe has had ongoing psychological problems that commenced from years before the 1994 incident that "complicate" the question of his incapacity for work. It also noted that he has an ongoing alcohol abuse problem that commenced in about 1976 and said that "[t]his no doubt plays a part in his inability to work". In par 14, the Tribunal concluded that both problems "play a very significant part in his current unemployed situation" and that his 10 percent impairment, though here accepted to be related to the 1971 work-caused injury, was not the reason for that situation. To say no more than the Tribunal has in pars 11 and 14 does not, without any explanatory reason at all, provide any justification for the conclusion it reached in par 14 and incorporated in its second order.

43 This is I think clear when it is recalled that the Tribunal found in pars 4 and 10 that for over twenty years between leaving the Army and suffering the 1994 injury, he was continuously in a series of private employments and occupations. The Tribunal does not provide any explanation at all why it considered that Mr McAuliffe's longstanding alcohol abuse problem that had not affected to any significant degree his working capacity during the years from 1972 to 1994 should nevertheless by 1996 have become a "very significant" cause of his then current unemployment. Nor does the Tribunal offer any reasons for its finding that the psychological problems, also present for years before the 1994 injury but which had not affected his work capacity, nevertheless by 1996 had a "very significant" impact on that capacity.

44 There was a lot of evidence, from experts as well as from Mr McAuliffe himself, about these psychological and alcohol problems. It is summarised in par 22 of the appellant's Outline of Submissions filed on 9 May 2002. This body of evidence does not all point unequivocally to a clear explanation why these problems could have prevented Mr McAuliffe working after 1994, though they did not prevent him working before 1994. The Tribunal could not reject Mr McAuliffe's claim for ongoing workers' compensation on the second basis for decision it referred to in par 14 without evaluating the conflicts in this body of evidence and explaining why there was to be found in this evidence a foundation for its second basis for decision. In view of the Tribunal's findings in pars 4, 10 and 12 about his ability to work before 1994, it is by no means certain that the Tribunal would, if it had given the necessary consideration to these questions, have arrived at its conclusion in par 14. Perhaps that may nevertheless be the correct conclusion. But, in the absence of informative reasons showing why that may be so, the Tribunal's second order, in so far as it is supported by the second basis, cannot stand.

45 Because of the Tribunal's failure to comply with its duties under ss 42(2), (2A) and (2B), its second order must be set aside, at least in so far as it denies Mr McAuliffe ongoing compensation for all detriments other than costs of medical treatment.

46 Mr McAuliffe's entitlement to payment of the costs of medical treatment in relation to his 1971 injury is provided for by ss  124, 14 and 16 of the 1988 Act: s 16(2) makes it clear that it is enough that Mr McAuliffe obtained medical treatment "in relation to" the 1971 injury in 1996 (and subsequently) and that it is not necessary for him also to show, in order to be entitled to the costs of that treatment, that the 1971 injury "resulted" in incapacity for work or impairment of bodily function.

47 His claim to treatment costs thus raised different matters for consideration from those raised by his claim in respect of total incapacity for work. Rejection of the latter, governed by ss 14, 19 and 24 of the 1988 Act does not necessarily mean that his claim for ongoing treatment costs for his shoulder injury under s 16 must fail. This is especially so since by its first order the Tribunal accepted that there was a causal link between the 1971 injury and his post-1994 10 percent shoulder impairment. The question whether, if Mr McAuliffe were to obtain treatment for his post-1994 shoulder condition, that treatment would be "in relation to" his work-caused injury was a live one. Yet the Tribunal dismissed this particular claim without giving any reasons at all. Counsel for Comcare did not dispute the lack of reasons, but he submitted that this issue was not discussed at the hearing before the Tribunal. Mr McAuliffe, who represented himself before the Tribunal, may not have specifically raised this aspect of the delegate's decision. But it was not suggested he should be taken to have abandoned his challenge to the denial of ongoing medical treatment.

48 Mr McAuliffe was specifically denied any further entitlement to such treatment costs by the delegate's decision of 21 July 1999, affirmed on reconsideration. It was an issue for the Tribunal's own determination raised by Mr McAuliffe's appeal to it. The Tribunal by its second order determined this issue against Mr McAuliffe.

49 The Tribunal's second order in so far as it affirms the delegate's decision that Mr McAuliffe is not entitled to any further costs of treatment for his shoulder impairment cannot stand. For the reasons given, the second order of the Tribunal, in its entirety, must be set aside.

NO EVIDENCE

50 It was said that all the relevant evidence was to the effect that the 1971 injury pre-disposed Mr McAuliffe to the consequences that emerged following the 1994 incident and that the 1971 injury therefore contributed to loss of bodily function that emerged after the 1994 fall. It was for this reason that it was said there was no evidence that the 1994 fall was a new incident.

51 I have explained why the Tribunal's second order, in so far as it is based on its view of the 1994 fall as a significantly "new" incident, is flawed with error of law. But if it were said that the only error of law in this conclusion is the "no evidence" defect, that attack on the Tribunal's decision would fail. In Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601, the Full Court made it clear that error of law within s 44 the AAT Act is not established by showing that a finding of the Tribunal was against the weight of evidence and said:

"An appellant who attacks [pursuant to s 44 the AAT Act] a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based."

52 The Tribunal's reference in par 12 of its reasons to the version of the 1994 incident given by Mr McAuliffe "in his original statement" is a reference to the following comment in Mr McAuliffe's letter of 30 May 1995 to Comcare:

"1994 Fell on rocks on way to beach shoulder `popped out' did not seek any medical treatment as previously told just take `pain killers'"

53 At the hearing (where Mr McAuliffe represented himself), what the Tribunal referred to in par 12 as "the version that he gave at the hearing" emerged in closing comments made by Mr Wallace (counsel for Comcare) and Mr McAuliffe himself in discussion with the Tribunal:

"MR MULLER: Is that what you told Dr Thomas, you slipped on some rocks? Is that what you told Dr Thomas that you slipped on some rocks?

MR McAULIFFE: I was walking into the water and I slipped on some rocks and fell into the water; yes. I didn't fall on the rocks. There is an actual severity of trauma which details that which was submitted to the department.

MR WALLACE: Well, could I just interrupt for a moment? Mr McAuliffe's own incident report dated 30 May 1995 at T14 says:

1994 fell on rocks on way to beach. Shoulder popped out. Did not seek medical treatment as previously told just to take some pain killers.

So it's Mr McAuliffe's own written document that puts him falling on the rocks on the way to the beach, not in the water falling over.

MR McAULIFFE: Mr Muller, I'd like to clarify that on a - terminology. I was walking on rocks and fell into the water and that's contained in a document which I submitted to the department which is T394.

MR MULLER: T394?

MR McAULIFFE: There's two pages to that. It's the second page which is headed Severity of Trauma.

MR WALLACE: Four years later you change your story.

MR McAULIFFE: I'm not changing my story, it's explaining. If you have a look at some of my hand-written letters you can see I don't express myself very well in writing."

54 The document which Mr McAuliffe referred to as "T394" and "the second page which is headed Severity of Trauma" is a typewritten document prepared by Mr McAuliffe and forwarded to Comcare under cover of his letter of 28 October 1999. In it Mr McAuliffe sets out the various injuries he suffered to his shoulder and their consequences as follows:

"SEVERITY OF TRAUMA

1^st 1971 Situation - fully tactical Army exercise in rugged terrain of the northern region of the Blue Mountains.

In a simulated movement forward whilst under fire a platoon was crossing a dirt road to seek cover in a deep ditch on the far side. At a run with full battle pack and rifle (approx 50Kg+), I tripped and fell in to the ditch on my right arm dislocating the shoulder.

2^nd 1972 Bumped right shoulder in minor vehicle contact - no dislocation.

3^rd 1979 Carrying box of tomatoes (no fall) - subluxation reduce spontaneously.

4^th 1994 Tripped on flat rocks whilst entering water at beach. Fell into sandy bottom. Water was approx. 1 ft deep. Subluxation reduced spontaneously."

55 It was for the Tribunal to determine, as a matter of fact, what was the nature of Mr McAuliffe's 1994 fall and what part it played in causing his current impairment of shoulder function. Moreover, the Tribunal had the advantage of hearing from Mr McAuliffe. It was, I think, open to the Tribunal to take Mr McAuliffe's 1995 statement as a statement that in the fall his right shoulder came into contact with rocks, ie, that his shoulder then suffered a severe impact that did not merely aggravate the consequences of the 1971 injury. At most, the Tribunal's finding as to the nature and thus the severity of the 1994 fall could be an error of fact not the subject of correction by this Court. The "no evidence" attack must fail.

IRRELEVANT CONSIDERATIONS

56 The proposition advanced by Mr McAuliffe that the Tribunal, in finding that a significant cause of Mr McAuliffe's current incapacity for work was his psychological and alcohol-related problems, took into account those problems when they were truly irrelevant considerations to the decision it had to make is, on its face, surprising.

57 There was expert opinion to the effect that, in addition to the problems with his shoulder, there were other factors preventing him from returning to work as at April 1999, including numerous psychological barriers and his fairly high level of alcohol and drug use. It is not to the point that the Tribunal can be criticised for acting on this evidence when there was other evidence, even a considerable body of other evidence, suggesting that those problems should not be seen as significant causes of Mr McAuliffe's failure to engage in employment after the 1994 fall. The Tribunal was entitled, as it did, to take these considerations into account in reaching its ultimate decision. That is not to say the Tribunal's decision is not still flawed because other errors of law were made.

58 Counsel for Mr McAuliffe submitted that the deficiency in the Tribunal's reasoning here relied on is closely bound up with its failure to give proper reasons for its decision. What exposes the Tribunal's second order to challenge is not that it unjustifiably took these two considerations into account in reaching the decision embodied in that order, but that it failed to explain why it thought those considerations had the probative force the Tribunal gave to them, when such explanation was necessary.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated: 18 June 2002

Counsel for the Applicant:	R Reed
Solicitor for the Applicant:	Cranston McEachern
Counsel for the Respondent:	J Wallace
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 May 2002
Date of Judgment:	17 June 2002