FEDERAL COURT OF AUSTRALIA

Baranski v Comcare [2013] FCAFC 31

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I will invite Justice Katzmann to deliver the first judgment.

KATZMANN J:

2    Michael Baranski, an employee of the Department of Defence, injured his back in March 2007. He maintains that the injury occurred at work. He made a claim for workers compensation. Comcare initially accepted the claim, but on 5 August 2010 it revoked its determination. It relied on information obtained at the time the claim was made (but apparently ignored) to the effect that the claim might not have been well-founded. Mr Baranski applied to the Administrative Appeals Tribunal (“tribunal”) for a review of Comcare’s decision. The tribunal affirmed the decision as it was not satisfied that Mr Baranski injured himself as he claimed.

3    Mr Baranski then appealed to this Court. He contended that the tribunal had erred in law (appeals to the Court being confined to questions of law). The appeal was dismissed and Mr Baranski now appeals to the Full Court.

4    There are three grounds of appeal. In substance, however, they all call into question the tribunal’s ultimate finding of fact that it was not satisfied that Mr Baranski injured himself in the way he claimed.

5    The questions raised by the notice of appeal are:

1.    The tribunal failed to identify and correctly apply the right test for causation?

2.    Was the High Court’s decision in Luxton v Vines (1952) 85 CLR 352 relevant? and

3.    Was the tribunal’s decision reviewable for Wednesbury unreasonableness, that is, was the decision so unreasonable that no reasonable decision-maker could have reached it (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230)?

6    These questions were also raised by grounds 7, 14 and 16 of the grounds of appeal before the primary judge. The answer to each question is “no”.

7    Mr Baranski was only entitled to compensation if his injury arose out or in the course of his employment: Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14(1) and 5A(1)(b). Whether that was so depended on whether the tribunal accepted his account of how the injury occurred. It did not.

8    The evidence and the factual findings are described in some detail in the decision of the primary judge and need not be repeated. A short account will suffice.

9    Mr Baranski said that the injury occurred at about 9.25 am whilst removing and replacing a toolbox from a cabinet at his place of work. It was agreed (and the tribunal accepted) that the toolbox weighed between 30 and 35 kilograms. In an accident report dated 29 March 2007 and a written statement dated 30 November 2010 Mr Baranski said that he bent to a squatting position and twisted to the side, extending his arms, and immediately felt a strong current of pain from the left foot up the leg and into the lower back. It was common ground that Mr Baranski did not mention to anyone at work that day that he had hurt himself or was in pain, and although several of his fellow employees gave evidence, none supported his account.

10    The tribunal accepted that Mr Baranski suffered an L4/5 disc prolapse or rupture on or about 23 March 2007. There was, however, a conflict in the evidence about how the injury happened. There were inconsistencies in Mr Baranski’s evidence and his version of events was contradicted by other witnesses whose evidence the tribunal preferred.

11    Three of Mr Baranski’s fellow employees gave evidence that he told them he had hurt himself jogging. One, Danielle Hodge, a project engineer, had asked Mr Baranski to retrieve two industrial thermometers which were stored in the toolbox. She said that she was present while he removed the toolbox, took the thermometers out, and replaced the toolbox in the cabinet. She said that she saw no obvious lifting. She also said that Mr Baranski showed no sign of pain, told her the toolbox was heavy, and warned her to be careful if he was not there to help her when she needed something from it. She said that Mr Baranski told her later in the day that he had been for a run at lunch and she had observed that he was red in the face. Mr Baranski denied both conversations. He also denied ever jogging, but there was evidence to doubt the veracity of these denials.

12    A number of medical witnesses were called. All expressed the opinion that the most likely cause of a disc prolapse was a lifting and twisting action of the kind described by Mr Baranski in his evidence but all bar one said that spontaneous disc ruptures were possible. One witness, Dr McGill, said that he had seen disc protrusions caused by jogging and disc protrusions that had occurred spontaneously. The tribunal preferred the evidence of those medical practitioners who accepted the possibility of a spontaneous L4/5 rupture over the lone witness who did not.

13    The crux of the tribunal’s decision appears at [110] of its reasons:

The weight of the medical evidence supports the view that a lifting and twisting action such as that described by Mr Baranski when lifting the toolbox is the most usual cause of a disc protrusion. However, the inconsistencies in his evidence and between his evidence and that of others, and the implausibility of some of his evidence, leads us to conclude that he did not injure himself in the way he claims.

14    It is convenient to deal with grounds 1 and 3 together.

15    The primary judge accepted Mr Baranski’s submission that the question of causation (whether the injury arose out of Mr Baranski’s employment) had to be resolved by the application of common sense in accordance with what the High Court said in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. But his Honour rejected (and rightly so) Mr Baranski’s submission, maintained in this appeal, that the tribunal must have applied the wrong test because it was inconsistent with common sense and common experience to find that the injury did not occur in the way Mr Baranski described.

16    The tribunal was faced with two conflicting accounts of how Mr Baranski hurt himself. Mr Baranski’s own evidence was unsatisfactory. The tribunal accepted the evidence of the lay witnesses who testified that Mr Baranski told them that he hurt himself jogging. All but one of the medical witnesses testified that it was possible that the injury could have occurred by jogging or spontaneously. Dr McGill said:

My answer is that I’ve seen disc protrusions being precipitated by lifting events, I’ve seen them in people who have been jogging and I’ve seen them commonly where there has been no incident at all. So I think it depends on the history that the person gives. If the history was a lifting episode with no jogging, then I would accept the lifting episode as having played a role.

17    The problem in this case is that the tribunal did not accept that there was such a history.

18    Mr Baranski does not contend that in preferring some witnesses to others the tribunal fell into appealable error. To conclude in these circumstances that the injury did not occur in the way he claimed does not defy common sense. There is absolutely nothing to indicate that the tribunal approached the question of causation in anything but an orthodox fashion. The first ground of appeal must fail.

19    It follows that the third and final ground of appeal must also fail. Even if Wednesbury unreasonableness has any application in an appeal limited to a question of law and one which is not concerned with the exercise of a discretion (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40]), the error is not of this kind. The tribunal’s decision was not unreasonable, let alone so unreasonable that no reasonable decision-maker could have reached it. The tribunal’s decision was lucid and well-reasoned. It was a decision plainly open on the evidence. In submissions Mr Baranski described it as perverse. I do not accept this description. Even if the decision were perverse, the argument would face the hurdle imposed by cases such as Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139.

20    As for ground 2, the primary judge was also right to hold that Luxton v Vines (1952) 85 CLR 352 (“Luxton v Vines”) was irrelevant. This was a simple case about who should be believed. Luxton v Vines was not. That was a negligence suit in which direct proof was unavailable and so causation had to be inferred from circumstantial evidence. Luxton v Vines established no new principle of law. It was an application of established principles. The Court restated them by referring to what it had said in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5:

In questions of this sort, where direct proof is not available, it is enough that the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture… But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise

21    This was not a circumstantial case and it was not a case where the circumstances appearing in the evidence gave rise to conflicting inferences of equal degrees of probability. It is true that direct proof was not available about when the disc prolapse occurred, but direct proof was available about whether Mr Baranski injured his back removing and replacing the toolbox. He said he hurt his back at the time and felt excruciating pain. The tribunal considered that Mr Baranski’s description of the pain was such that, if it were true, one of his fellow employees could not have failed to notice his discomfort. The tribunal was entitled to disbelieve his account.

22    The appeal must be dismissed with costs.

ALLSOP CJ:

23    I agree. I would only add that this is not the case, and these are not the facts, for any inquiry into the relationship between such cases as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139. I agree with the orders proposed by Justice Katzmann.

TRACEY J:

24    I also agree with the orders proposed by her Honour and for the reasons which she has given in the course of delivering judgment this morning.

ALLSOP CJ:

25    The orders of the Court will be the appeal be dismissed with costs.

Associate:

Dated:    15 March 2013