Willcocks v Comcare [2001] FCA 1315

FEDERAL COURT OF AUSTRALIA

Willcocks v Comcare [2001] FCA 1315

GRAHAM K WILLCOCKS v COMCARE A63 of 2000 FINN J CANBERRA 13 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A63 OF 2000

BETWEEN: GRAHAM K WILLCOCKS

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 13 SEPTEMER 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A63 OF 2000

BETWEEN: GRAHAM K WILLCOCKS

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: FINN J

DATE: 13 SEPTEMBER 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") challenging decisions of the Administrative Appeals Tribunal ("the Tribunal") that were adverse to the applicant, Graham K Willcocks, who was a claimant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") in respect of an injury to his lower back sustained in the course of his employment on 29 January 1996 when lifting a printer. The respondent, Comcare, admitted liability for that injury. 2 The principal claims made by Mr Willcocks were that (i) the incident of 29 January caused, or materially contributed to, his degenerative lumbar spine condition; and (ii) as a result of back pain and stress at work, he suffered a severe anxiety condition. 3 Put in short form the Tribunal's decision was that (i) the 29 January incident resulted in only a temporary aggravation of his then degenerative lumbar spine condition; (ii) Mr Willcocks' current lower back condition was not materially contributed to by the 29 January incident; (iii) his current condition resulted from an incident in Perth in March 1996; (iv) the condition arising from that Perth incident was not materially contributed to by his employment generally or by the 29 January incident; and (v) his current psychiatric condition, likewise, was referable to the pain suffered since the Perth episode. In consequence the Tribunal concluded that, as Mr Willcocks current condition was no longer attributable to his employment, it was not compensable under the SRC Act. 4 The Tribunal's decision was one made on the facts as found by it. That fact finding was made the more difficult a task not only because the applicant had both a degenerative back condition and a history of psychiatric illness which pre-dated both the 29 January and the Perth incidents, but also because of adverse findings concerning Mr Willcocks' credibility and the reliability of the medical evidence he adduced. In particular the Tribunal found that he consciously omitted to provide examining specialists with a full and complete history of his back condition. 5 The challenges now made to the Tribunal's decision proceed on a broad front. They relate essentially to an attack on the Tribunal's fact finding not, so it is said, for the purpose of securing (colourably) a merits review of the decision but so as to reveal errors in findings that evidence errors of law, Wednesbury unreasonableness, failure to take relevant considerations into account and lack of evidence for findings. Distinctly it is alleged that there was a failure to give adequate reasons for decision. Both the original and amended notices of appeal run over some number of pages listing a variety of factual errors and omissions. This case is not one in which it would be profitable to consider these seriatim. It does not rise above what the applicant contends to be inappropriate fact finding. 6 As is now well understood any court reviewing a decision of the Tribunal cannot turn "a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Those "proper principles" do not allow for doubtful fact finding to be characterised as an error of law. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 "[a] tribunal … does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning". Likewise those "proper principles" do not require it to be shown that all matters raised in the proceeding before the Tribunal are dealt with in the reasons. For the purposes of s 43(2B) of the AAT Act, the Tribunal is not obliged to give a "line-by-line refutation" of an applicant's evidence either generally or in those respects where there is evidence contrary to findings of material fact made by the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex part Durairajasingham (2000) 168 ALR 407; see generally Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

The Principal Grounds of Appeal 1. Misconstruction/Misapplication of the SRC Act 7 The applicant seeks, at least in its voluminous written submissions, to discern two errors in the construction and application of s 4 and s 14 of the SRC Act from the language used by the Tribunal. The first relates to what I might describe as the causal significance of the 29 January incident; the second, to whether the Tribunal in fact characterised the 29 January as an injury simpliciter or as a disease. 8 Insofar as presently relevant the sections of the SRC Act relied upon provide as follows: (a) s 4: " "disease" means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation; … "injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; …" (b) s 14(1): "Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." 9 First the causal significance of the 29 January injury. The applicant submits that the Tribunal adopted an "either/or" approach to the causal significance of the 29 January and of the Perth incident without admitting of the possibility that there could be multiple concurrent events both that aggravated Mr Willcocks degenerative condition and that resulted in the permanent impairment and need for medical treatment claimed by him. By so differentiating the two incidents, the Tribunal, it is said, misapplied the Act. It is unnecessary to set out the passages in the reasons said to evidence this. 10 The submission is belied by the Tribunal's express findings. In Australian Postal Corporation v Bessey [2001] FCA 266 Gyles J observed helpfully that (at [6]): "It has been well settled by a series of decisions starting from Jordan CJ's judgment in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157, including Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19; Asioty v Canberra Abattoir Pty Ltd (1989) 86 ALR 399, that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity." 11 In the present case the Tribunal made the positive finding that the aggravation sustained by Mr Willcocks on 29 January was "not long lived" but rather it only "temporarily aggravated his preexisting degenerative disease". This finding relieved the Tribunal of the need to consider multiple causes. In any event the Tribunal did make the express finding that Mr Willcocks' current condition was not materially contributed to by the 29 January incident. Rather that condition was attributable to the acute Perth episode. 12 The second alleged error was that, in characterising the 29 January incident, the Tribunal failed to distinguish between whether it was an injury simpliciter or a disease. Given the causal significance attributed to that incident in any event – ie it was "not long lived" – the failure ascribed to the Tribunal (if failure there was) could have no operative effect. 2. 'No Evidence' and Wednesbury unreasonableness 13 As I earlier noted, the applicant's challenge to the Tribunal's decision was directed primarily at its fact findings and this in the main for the purpose of suggesting that particular findings lacked probative foundation in fact and were unreasonable. 14 The principal findings put in issue were (i) that the effects of the 29 January incident were short lived, this being in the face of "uncontradicted evidence" to the contrary; (ii) that the Perth incident was the cause of the disc prolapse that produced Mr Willcocks ongoing pain; and (iii) that the medical evidence be rejected that ascribed Mr Willcocks' condition to the 29 January incident because of the incomplete and inaccurate histories provided to the medical practitioners. 15 The second and third of the above can be dealt with together. For my own part I would have to say the claims made border on the astonishing. There was clear evidence of an acute episode in Perth; there was medical evidence that Mr Willcocks' present condition could be ascribed to a degree of neural damage caused by a period of nerve compression; there was obvious reason for caution in accepting the views of the medical practitioners to the extent that they attributed the applicant's condition to the 29 January incident; and one consultant, Dr Stevenson, who had previously provided reports based on what he described as a "seriously misleading" history, but who had later been provided by Comcare with further details of Mr Willcocks' medical history, concluded that the 29 January incident was in line with "a minor temporary aggravation of his underlying condition" and it could not be regarded as "having in any substantial or material way contributed to his ongoing symptomatology". In light of the above and of the evidence concerning the Perth incident and its effects, the finding made by the Tribunal in relation to the Perth incident was supported by some probative material. Neither could it be said that that finding and the partial rejection of the medical evidence were devoid of logical grounds. 16 The distinct challenge to the finding that the 29 January incident produced a "short lived" and "temporary" aggravation of the applicant's degenerative condition is totally without merit. It is premised upon at least some characterisations of the evidence before the Tribunal that are of doubtful accuracy – compare, for example, the assertion that Mr Willcocks was largely free of pain in 1994-1995 with his chiropractor, Dr Keynes' notes of that period. And it challenges particular findings that were clearly open to the Tribunal, as witness its unexceptionable rejection of a brief certificate of Dr Keynes given on 30 August 1996 which was not supported by Dr Keynes' own contemporaneous records or by his report of 14 March 2000. 17 There was evidence from work colleagues that Mr Willcocks was suffering discomfort, apparent pain and impaired mobility after the 29 January incident and prior to his driving trip to Perth. The Tribunal appears to have accepted this evidence. In this sense it was "uncontradicted". It equally accepted that he suffered pain in the course of the drive to Perth. Nonetheless the Tribunal reasoned: "[81] We note that the applicant took little time off work after the 29 January 1996 lifting incident and did not mention low back or leg pain to Dr Keynes on 30 January 1996. Nor did the applicant attribute the severe pain he experienced in Perth to the lifting incident at work when giving a history of his pain to Dr Kennedy, indicating instead that he had had the pain since late February 1996 (Exhibit 14). Given the applicant's long-standing history of back and leg pain, we conclude that the aggravation he sustained on 29 January 1996 was not long lived. Taking the whole of the evidence into account, we conclude that the 29 January 1996 incident probably did not cause the applicant's principal right leg symptoms, but rather temporarily aggravated his pre-existing degenerative disease in the thoracic spine region. After that incident he continued to work for about a month. He endured the long drive to Perth, which no doubt took its toll on his back, and likely would have done so in the absence of the January 1996 lifting incident, given the past back history." 18 The applicant's real objection is that the Tribunal did not accept that the Perth incident merely aggravated the symptoms resulting from the 29 January incident. But as was open to it, the Tribunal ascribed the Perth incident to a discrete cause having discrete effects. 19 In light both of the evidence to which the Tribunal expressly referred and of the material before it, there was both probative material and logical grounds for its finding that the 29 January aggravation was of a temporary character and that it did not materially contribute to the applicant's present permanent impairment. Those findings, moreover, have more than a distant resonance in the revised opinion of Dr Stevenson to which I earlier referred. 20 Challenges to several other specific findings have been rejected in passing in what I have said, as for example, the assertion by the applicant that the Tribunal failed to take into account that he was largely symptom free for the two years preceding the 29 January incident. The assertion was clearly encompassed by, and rejected in, the Tribunal's ultimate findings.

3. Inadequacy of Reasons 21 This challenge is, to say the least, arresting. It asserts that a number of findings (for the most part reflecting those challenged above) were not adequately explained (justified) in the reasons for decision. 22 The reasons, in my view, were more than adequate for their purpose. They ran to 25 pages; are clearly expressed; they adequately betray the Tribunal's processes of reasoning; and they leave no doubt as to why the Tribunal considered the claims should be rejected. They well satisfy the requirements for reasons outlined by Finkelstein J in Comcare Australia v Lees (1997) 151 ALR 647 at 656.

Conclusion 23 This appeal was properly characterised by the respondent as an attempt to re-litigate the facts. The practice "of attempting to magnify and inflate questions of fact into questions of law" is to be deprecated: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 145. 24 The order of the Court is that the application be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 13 September 2001

Counsel for the Applicant: Mr A Anforth

Solicitor for the Applicant: Lander & Co

Counsel for the Respondent: Mr G Watson

Solicitor for the Respondent: Phillips Fox

Date of Hearing: 29 June 2001

Date of Judgment: 13 September 2001