FEDERAL COURT OF AUSTRALIA

Norton v Comcare [2000] FCA 1068

ADMINISTRATIVE LAW - accumulation of factual misstatements by Administrative Appeals Tribunal in its reasons for decision leading to error of law - decision made by AAT in a manner so devoid of plausible justification that it is flawed for Wednesbury unreasonableness - applicant incapacitated due to degenerative condition and work-related back injury

Safety Rehabilitation and Compensation Act 1988 (Cth) s 19

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(2)(g)

Waterford v Commonwealth (1987) 163 CLR 54 cited

Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 applied

Abebe v Commonwealth (1999) 162 ALR 1 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 applied

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 applied

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 followed

JAMES LESLIE NORTON v COMCARE

QG 182 OF 1998

DRUMMOND J

4 AUGUST 2000

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The matter be remitted to the Administrative Appeals Tribunal, differently constituted, for redetermination, with liberty to receive further evidence.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal dismissing the applicant’s claim and affirming the decision of 15 April 1996 of a reconsiderations delegate of the respondent, which had affirmed a decision of a delegate dated 29 January 1995 that deemed the applicant able to earn full income in suitable employment, a finding that disentitled him to receive weekly payments of compensation under s 19 the Safety Rehabilitation and Compensation Act 1988 (Cth).

2                     The evidence before the Tribunal showed that the applicant suffered a back injury on 1 November 1976 while working as an airport trainer in the Department of Transport fire fighting service.  On 11 August 1977, a delegate of the Commissioner for Employees’ Compensation determined that he was entitled to payment of compensation for the days he was off work following his injury, on the ground that he had sustained personal injury, viz, acute muscle strain of back, arising out of or in the course of his employment.  The applicant made a further claim for compensation following a short period off work after he had again injured his back, this time at home, in late October 1977.  A delegate of the Commissioner for Employees’ Compensation on 12 December 1978 determined that he was entitled to payment of compensation for the ensuing period of absence from work in respect of aggravation of acute muscle strain of the back.  He made a third claim for compensation in respect of another short period he was off work following a further injury to his back for which he lodged an application for compensation on 10 February 1981.  Although the relevant papers are not in the appeal book, the Tribunal noted in its decision that liability was accepted to pay compensation to the applicant in respect of this further claim.

3                     As the Tribunal noted in its reasons, the applicant accepted an offer of voluntary redundancy in 1991, ceasing work on 12 November 1991.   In October 1993, however, he lodged a further claim for compensation for “lower back pain caused by disc lesions and spondylolisthesis”.   He claimed he had a 30% impairment of the back and a further 10% impairment of both legs as a result of his back injury.  A determination was apparently made by one of the respondent’s officers in respect of this claim on 6 February 1995 adverse to the applicant.  On reconsideration, however, another of the respondent’s officers on 16 February 1995 ruled partly in his favour.  The reconsideration decision was as follows:

“1.       Liability continues in respect of the work injury sustained on 1/11/76.

2.         Compensation is payable under section 24 in respect of a 10% loss of efficient use of the right and left legs.  The amount payable under section 24 is $7,798.”

4                     In a way which is not apparent from the Tribunal’s reasons or the appeal book, the applicant pursued his claim for weekly compensation on the basis of a 30% impairment of the back.  It is out of that that the present proceedings arise.

5                     Senior counsel for the respondent identified the issues before the Tribunal as:

(1)               Whether any symptoms the applicant was experiencing in his back were the result of the 1976 incident for which he had claimed compensation, or whether they were the result of a long-standing degenerative condition in his back; and

(2)               Whether the applicant was suffering from an incapacity for work.  In this regard, it was necessary to consider the circumstances of the applicant’s acceptance of a voluntary redundancy from his position as regional fire officer for New South Wales.

6                     The applicant did not contend that Comcare was prevented by any of its four earlier decisions in his favour from pursuing the first issue.  The Tribunal found against him on both issues.

7                     The first medical practitioners who saw the applicant after the injury of November 1976 were his general practitioner who diagnosed him on 12 November 1976 as having suffered muscle spasm, but who considered he was then virtually pain free, and the Commonwealth Medical Officer, Dr Stewart, who saw him in July 1977 in connection with his initial claim for compensation, and who reported that on that occasion there was then no evidence of any back disability.  Neither of these doctors appears to have called for any x-ray examination.

8                     The applicant has been examined by a number of specialists between 1981 and 1997, some on referral from his general practitioner, others at the request of his solicitors or Comcare’s solicitors in connection with this litigation.  All the specialists had access to x-ray reports and they all acknowledged that he had pathology in the form of extensive degeneration of the L4/5 disc that antedated his 1976 injury.  The specialist who saw him on a number of occasions between 1981 and 1983 at the request of his general practitioner considered that this degeneration progressed significantly during this period, and ultimately recommended spinal fusion which the applicant, however, did not undergo.  Four of these practitioners, Drs Seaton, Coffey, Tuffley and Hazelton, gave oral evidence before the Tribunal as well as providing their reports.

9                     Drs Seaton and Coffey, who examined the applicant at the request of his solicitors, each gave reports and evidence supportive of his claim to significant permanent back impairment as a result of the 1976 injury.  Both spoke of, among other things, the degenerative disc condition at the L4/5 level.   Dr Tuffley also examined the applicant at the request of his solicitors.  He was less supportive of the applicant’s claim than Drs Seaton and Coffey, though he considered that the episode in November 1976 represented a significant aggravation of a pre-existing, age-related degenerative change within the L4/5 disc.

10                  Dr Hazelton gave an unequivocal opinion in his reports that while Mr Norton first reported symptoms in late 1976, he clearly had advanced degenerative disease of the lumbar spine at that time, and that the only significance of the episode in November 1976 was that it “may have temporarily aggravated his symptoms”.  He said “his subsequent reporting of symptoms is clearly the natural progression of his severely degenerative lower lumbar spine”.  He did not resile from this in cross-examination.

11                  In its reasons the Tribunal acknowledged the conflict in the medical testimony and identified the applicant’s credibility as the issue that was critical both to its assessment of the applicant’s evidence, and to resolving the conflict in the medical evidence.

12                  In the second paragraph numbered 15 in its reasons, the Tribunal recorded its assessment of Mr Norton saying:

“He impressed us as an intelligent, highly motivated and ambitious officer.  By 1990/1991 however he had become disenchanted by the direction that restructuring was taking the Fire Service, and his own career.  He chose voluntary redundancy rather than compete for a position, or move to another location.  In our view it was not until the Norfolk Island pizza business proved personally and financially less rewarding than anticipated, that the applicant sought to attribute any back symptoms to the 1976 work incident.  We are firmly of the view that he attempted to mislead the Tribunal about the level of physical activity and fitness required of him as an Assistant General Manager; about his persistent lower back pain symptoms, and the effect of these symptoms upon his ability to continue his employment with Air Services Australia; and about his alleged inability now to undertake physical tasks and administrative employment.”

13                  The Tribunal referred to the two videos taken of the applicant by Comcare investigators and expressed surprise “that he was not cross-examined more specifically as to movements we observed”, and said:

“Nonetheless the evidence on the film makes it quite clear that he was exaggerating his restrictions of movement.  The applicant’s testimony was inconsistent with what we saw on the film.  This does not mean that we reject all of his evidence, but we look to other more acceptable testimony to corroborate the applicant’s evidence and to support our findings of fact in important areas.”

14                  In its concluding comments made after reviewing the other evidence, the Tribunal returned to the videos and said:

“35.     We are satisfied on the evidence, however, that the applicant is able to undertake physical activities inconsistent with his evidence of the symptoms he suffers.  Video evidence can be equivocal and often unsatisfactory, but in this matter the evidence was stark and unequivocal.  The applicant exhibited an enviable agility and apparently pain free range of movement, such as bending, twisting, reaching to wash the roof of the land cruiser.  This evidence alone would indicate an ability to perform the less physically demanding administrative duties the applicant was performing at Air Services Australia.  The video evidence, however, only confirmed our assessment that the applicant was prevaricating as he gave his evidence.

36.       We are satisfied on the evidence that the applicant left his employment in November 1991, for reasons unconnected with any physical problems he was allegedly experiencing at the time.  We accept the evidence of Drs Hazelton and Tuffley, and we are satisfied also, that the applicant does not suffer an incapacity to perform the work he was performing when he left Air Services Australia in November 1991.  He is able to earn his normal weekly earnings of $854.39 per week.  We are satisfied on the evidence that any incapacity the applicant may suffer is as a result of his degenerative condition, and not attributable to his employment with the Commonwealth, and that Comcare is not liable to pay compensation to the applicant.”

15                  For these reasons the Tribunal dismissed the applicant’s application for review.

16                  In his appeal, the applicant sought to challenge the Tribunal’s decision, effectively on the grounds that it had made a number of wrong findings of fact.  At the hearing it submitted that the Tribunal’s decision was flawed with error of law constituted by Wednesbury unreasonableness.  It was on that basis that the proceeding before me was largely fought.

17                  It is trite law that the task of fact finding is committed to the Tribunal, not to this Court:  this Court can intervene only if the Tribunal’s decision is infected with error of law.   As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77:

“The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make.  There is no error of law simply in making a wrong finding of fact.”

18                  But a decision involving only factual evaluations may still be flawed for reviewable error of law.  In Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, it was said at 12 that, though a decision be on matters of fact, the decision will be flawed for error of law and thus reviewable if the decision-maker, in determining the facts, has failed to have regard to relevant considerations or has had regard to irrelevant considerations or if the decision may have been so unreasonable that no reasonable decision-maker could have come to it.

19                  The scope and even the availability of Wednesbury unreasonableness as a ground of review of administrative action at common law are the subject of dicta, but no ratio binding on this Court, in Abebe v Commonwealth (1999) 162 ALR 1 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.  The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 322 - 323, 327 and 331 - 332 stands as authority that unreasonableness is a ground upon which an administrative decision can be reviewed by the Court, as is Sharp.  Gibbs J, in Pestell at 327, treated it as a residual ground, only available where no other invalidating error of law can be identified in the administrative decision, but as a ground independent of the more common errors of law such as taking into account irrelevant considerations and breach of natural justice.

20                  In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, Mason CJ and Deane J considered that the Wednesbury formulation of unreasonableness contained in s 5(2)(g) the Administrative Decisions (Judicial Review) Act 1977 (Cth) extended to the case of a decision-maker who “makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course”.  This suggests that when a question of Wednesbury unreasonableness arises, it is not just the ultimate decision that can be examined for that particular flaw:  attention can properly be focused also on the reasons given by the decision-maker for arriving at its decision.  And if those reasons can be said to show that the decision has been reached in a manner devoid of plausible justification, it will be reviewable for Wednesbury unreasonableness, even though the material available to the decision-maker was such that the ultimate decision could have been justified on a basis different from that adopted by the decision-maker.

21                  In order to deal with the claim of Wednesbury unreasonableness, it is first necessary to consider, in a little more detail, how the Tribunal reached its decision.  The authorities also emphasise the need, in doing that, to avoid over-zealous scrutiny of the Tribunal’s reasons in a search for error.

22                  After setting out its views about the applicant’s credibility in par 15, the Tribunal turned to see whether there was more acceptable testimony to corroborate the applicant’s evidence, but found there was none.

23                  One of the witnesses called by the applicant was a former fellow worker, Mr Rispoli. Mr Rispoli knew Mr Norton for over 30 years, but apparently only worked with him for the last seven.  Of his evidence the Tribunal said, at par 17:

“Mr Rispoli worked with the applicant in Sydney, in 1992, and is himself suffering from a back condition.  He gave evidence that he recalled the applicant as being a highly motivated, very capable, very fit officer, and that they would walk 3-5 kms at lunch time.  Mr Rispoli remembers a few occasions when the applicant arrived at work in pain; and he recalls also that he was told that the applicant had a back problem as a result of lifting a drum of foam compound.  We accept that Mr Rispoli gave his evidence to the best of his recollection.”

24                  In dealing with Mr Rispoli in par 17 of its reasons, the Tribunal did not expressly say it regarded him as honest, but not sufficiently reliable on the issue of back complaints made by Mr Norton at work, up to when he ceased to work with Mr Rispoli in November 1991.  I can see nothing in Mr Rispoli’s evidence that would justify reading the Tribunal’s reasons at par 17 in that way.

25                  The Tribunal gave its evaluation of Mr Rispoli’s evidence in par 17 in the context of examining the material before it to see if there was support for, among other aspects of the applicant’s evidence, his testimony that he had lower back pain which continued to cause him difficulties up to the time he finished work with Air Services Australia in November 1991 and thereafter.  Though it found Mr Rispoli to be an honest witness, it plainly did not find in his testimony any significant corroboration for the applicant’s claim to experiencing enduring problems with his back.

26                  For the Tribunal to say that “Mr Rispoli remembers a few occasions when the applicant arrived at work in pain” misstates, to a quite significant extent, Mr Rispoli’s evidence.  The specific passage of evidence the Tribunal appears to have been referring to here was quite different.  What Mr Rispoli said was:

“Did you notice, yourself, anything about what he did which would indicate he had any problem with his back?---Yes.

What did you see?---Well, I saw him on quite a few occasions arriving to work, you know, with obvious pain …”

27                  He gave a good deal of other evidence on this aspect of the applicant’s case.  For example, he also said:

“I say when the pain get (sic) too much, I suppose, what do you do?  You tend to demonstrate it, tend to show it, physically, and indeed, he’d try to straighten up and when he straightened up he was able to walk about, and indeed at times you wouldn’t think he had any problem there, but the problems sort of reappeared; but it was something actually that was on and off and something he carried throughout the nine years that I knew him, I worked with him.

Which nine years were those nine years? … From '94 – sorry, '84 to '91 -  sorry, seven years …”

28                  The difference between what Mr Rispoli in fact said and how the Tribunal understood his evidence is not a trivial one.  The Tribunal found that the applicant had attempted to mislead it about “his persistent lower back pain symptoms”.  Mr Rispoli gave unequivocal evidence that throughout the seven years he knew Mr Norton from 1984 to 1991, Mr Norton from time to time complained of back trouble at work and, on occasions, showed signs of having difficulties with his back, although he always insisted on carrying on with his duties.  He spoke of much more frequent observations over a seven year period of Mr Norton in pain at work than having seen that “on a few occasions”.  The Tribunal accepted that he gave “his evidence to the best of his recollection”.  There is nothing in the transcript of his evidence that I can see which could justify a conclusion that he only saw such signs on a few occasions.  Mr Rispoli thus provided significant corroboration for the applicant’s case that he had enduring problems with his back through the latter half of the 1980s, into 1991 and beyond.  By misstating his evidence, the Tribunal showed that it failed to appreciate this.

29                  A witness Mr Norton called to give evidence concerning the circumstances of his departure from Air Services Australia was Mr James Waters (not “Walters” as the AAT misnamed him).  Mr Waters’ evidence with respect to Mr Norton’s back condition was limited to the following:

“Now, from what you knew of Mr Norton, what can you say about his attitude to this sort of thing?---Well, Jim was highly regarded from an operational point of view.  Within the structure we met on a regular basis, and I suppose it was when we became District Managers that we met every six weeks in Canberra, and I suppose that was when I got to know Jim as I know him today, through those meetings. ---

You saw Mr Norton every six weeks or so?---Yes, that’s right.

Did you have any knowledge of him having a bad back?---No.”

30                  The Tribunal said of this witness, in par 16 of its reasons:

“Mr Walters said also, that he had known the applicant since 1968 and that he saw him frequently over the years.  In the latter years, they had formal meetings every six weeks.  Mr Walters had no idea, however, that the applicant had back problems.  He had made no complaints to Mr Walters, nor ever exhibited any limitations of movement.”

31                  The comments in the last sentence record inferences drawn by the Tribunal from Mr Waters’ brief evidence of not knowing that Mr Norton had a bad back.  Of course, it is indisputable that Mr Norton did injure his back in 1976 at work and was accepted by Comcare as suffering problems that resulted from it then and again in 1977, 1981 and 1993.  It was also common ground among all the medical witnesses that from prior to 1976 he had significant pathology at the L4/5 disc consistent with pain in the lower back:  the contest among the medical reports was whether the 1976 injury had anything to do with his enduring back problems.

32                  The Tribunal, in par 19, referred to Messrs Pitcher and Butcher, two of the applicant’s former work colleagues whom Comcare called.  It said, “We accept them as witnesses of truth.”

33                  Of Mr Butcher, the Tribunal said at par 20:

“… he had known the applicant since 1968, that the applicant always kept in trim.  He said that if he had not been told more recently of the back injury the applicant suffered in Melbourne, he would never have known that the applicant had suffered an injury.  He said that over the years, he had never seen any sign of the applicant having a back problem.”

34                  Mr Butcher’s evidence was that he himself had been in the fire fighting services since 1968, but that he had only known Mr Norton for “at least 15 of those years”.  In 1991, they were in equivalent positions as Assistant General Managers; Mr Butcher for South Australia and Northern Territory.  During this time they met “probably four times a year, approximately” in Canberra, where regular Civil Aviation Authority management meetings were held.  He also gave this evidence:

“Did you know that Mr Norton had had a back injury back in 1976?---I wouldn’t have known when it was.  I certainly was aware that there was some injury to Jim’s back, and I believe it occurred when he was at the training school in Melbourne before he came to the SA/NT region in Darwin.

Right.  When you were seeing him during these meetings – I should ask you how long you were in the equivalent position for.  Over what kind of period were you having these meetings?---Oh, hell.   I’d say it was – I would say it was at least two years.

Right.  When you used to see him on these occasions, did you see any signs of a back problem?---No.”

35                  Although Mr Butcher’s evidence was that in the last two years of their acquaintanceship on the intermittent occasions they met at meetings in Canberra, he did not see any signs of Mr Norton having a back problem, the Tribunal misstated his evidence in a number of respects, all adverse to Mr Norton.  Mr Butcher did not give evidence “that he had known the applicant since 1968, that the applicant always kept in trim”.  Mr Butcher did not say that “if he had not been told more recently of the back injury the applicant suffered in Melbourne, he would never have known that the applicant had suffered an injury”.   Nor did he say that “over the years” he had never seen any sign of the applicant having a back problem:  he only said that was the position in the last two years during which they met intermittently in Canberra.  Counsel for Comcare did not attempt to defend how the Tribunal dealt with Mr Butcher’s evidence, acknowledging that it plainly misunderstood it.

36                  The Tribunal, at par 19, said of Mr Pitcher that he “has known the applicant since 1968/69”, that he said that Mr Norton was always extremely fit and “in his frequent dealings with the applicant never saw any effects of a bad back, nor any sign of the applicant having back problems”.  As the Tribunal observed, Mr Pitcher said the job of Assistant General Manager was not physically demanding.  Mr Pitcher’s evidence was that he first met Mr Norton in 1968 or 1969, when Mr Norton was a supervisor and he was a fire fighter at Sydney.  He said he came across him again over the years, that they ended up both as Assistant General Managers, he for the Victorian/Tasmanian region and Mr Norton for the New South Wales region.  He remembered hearing that Mr Norton had hurt his back at a training school, and that during the period they were both Assistant General Managers (the position from which they both retired), they met at about three monthly intervals in Canberra.  There is no suggestion that the Tribunal misstated his evidence in any material respect.

37                  The Tribunal dealt with Mrs Norton’s evidence in this way in par 18:

“She did her best to assist the applicant, but her evidence was clearly partisan.  We accept her evidence that the applicant can drive the tractor for 1½ to 2 hours each day, ride the ride-on mower for 1 hour per day although he would complain of being stiff and sore, and that he can walk for 2 kms, before stopping to rest.  She gave evidence also that whilst she and the applicant were on Norfolk Island, the applicant painted the ceiling of their home, using an extended roller, and that she helped with the painting.”

38                  Mrs Norton gave evidence that her husband had become quite badly handicapped by his back by the time they were living on Norfolk Island in the early 1990s.  The Tribunal considered her partisan.  It only accepted so much of her evidence as told against her husband’s case.  It was entitled to do this.  It was for the Tribunal to evaluate the reliability of her evidence.  But again, the Tribunal appears to overstate evidence adverse to the applicant when it treats Mrs Norton as having said “that the applicant can drive the tractor for 1½ to 2 hours each day, ride the ride-on mower for 1 hour per day although he would complain of being stiff and sore, and that he can walk for 2 kms, before stopping to rest”.  Her evidence was:

“I see.  Now, he does some mowing still?  Some work with the fields?---With the tractor he does, but not with the lawnmower or anything like that.  I do all of that.

And is there a ride-on mower?---There is a ride-on mower, yes.

Okay.  Can you tell us about his activities with that?---Well, yes, he - that’s limited the ride-on mower, that sort of just goes around the perimeter of the garden so - because you can’t get in close to the edge of the gardens with the - the tractor with the slasher, so the ride-on mower is just - just a small area that he does around there.

Okay.  Well, how long does it take him to do that work that he does with the ride-on mower?---The ride-on mower?

Yes?---Probably about an hour.

Do you know of any difficulty that he has with that?---Well, he - he’s very stiff and sore when he gets off the mower, yes.  He actually walks quite stiff after those sort of activities.

What about the tractor, does that cause any problems to him?---Just mainly sitting there or any length of time.  He still gets off the tractor with much difficulty and he’s very stooped over because his - you know, his back is pretty stiff.

How long - what is the maximum length of time he is sitting on the tractor?---On the tractor?

Yes?--Would be about 2 hours at a time - 1½  to 2 hours.  You know, he usually comes in or a break for morning or afternoon tea, or lunch, whatever the time span might be.

How - what is the maximum of the time over a day in these sort of activities - over a whole day?---Over a whole day?

Yes?---I’d say maximum 3, 4 hours.

Is that consistently?---No, it’s not, no.

…

I see.  Does he do any walking or swimming?---Swimming, no.  That apparently aggravates his back.  Walking:  we have tried to do a little bit of walking.  Recently we went for a walk to - well, it was Easter time, we discovered a Wetlands area around where we live and we though (sic), “Well, we’ll go or (sic) a walk.”  But it was about 2 kilometres, I think, walk - but there is (sic) strategically placed seats around the walk and we had (sic) stop several times to rest.”

39                  As counsel for Comcare submitted, it may well be right, in order to avoid the trap of subjecting the Tribunal’s reasons to over-zealous scrutiny, to accept that what the Tribunal meant when they purported to recite Mrs Norton’s evidence about her husband’s activities on the tractor and rider mower was that that was the time he would spend on those machines, on the occasions he used them, not that he spent time on those machines each and every day.   But the same restraint in criticising the Tribunal is not justified when dealing with the way the Tribunal misstated Mrs Norton’s evidence about his walking capacity.  The Tribunal said it accepted her evidence that Mr Norton “can walk for 2 kms, before stopping to rest”.  Mrs Norton’s evidence was not that he had any such capacity.  What she said was that she and her husband had tried, when on Norfolk Island, to do “a little bit of walking” and that on one occasion during a two kilometre walk he had to stop several times to rest.  The Tribunal misstated, to the applicant’s detriment, Mrs Norton’s evidence as to his general capacity to walk distances.

40                  Mr Norton called an occupational therapist, Mrs Stephenson, who had provided a very detailed report, supportive of his case, in which she concluded that he had significant “occupational limitations due to constant back pain, and intermittent sciatic pain” including limited tolerance for bending and limited tolerance for standing.  She considered that he was likely to be physically capable of sedentary to light employment but there were many barriers to him finding such an occupation, including his age and the fact that a prospective employer might well be concerned at the fact that he had a long-standing back injury.  The Tribunal dealt with her evidence in par 18 saying:

“The applicant called Mrs Stephenson, occupational therapist, who was present in the Hearing Room for some time during the showing of the film.  Despite the movements the applicant demonstrated on film, she remained steadfastly of the opinion, as stated in her report of 4 June 1998 … that the applicant could bend only to touch below his knees and could not return to his previous employment.  We found Mrs Stephenson’s evidence and report of little assistance.  She failed to address the applicant’s movements which were demonstrated on the film.”

41                  Mrs Stephenson only saw the videos when they were displayed during the hearing.  She was cross-examined only briefly on it as follows:

“Did you see the part of the video where he was actually lying under the vehicle and going up?---Yes.

It doesn’t seem awfully consistent with somebody who would have trouble getting off the toilet?---He’s not saying he’s having trouble getting off the toilet, but he’s saying that he’s reporting restrictions; I’d say it’s more stiffness that he’s having there.  I didn’t see anything inconsistent with that because when I saw him getting up and down off chairs when I was saying, you know, squat down, kneel, when he came - when he left the interview he was definitely stiff in his spine.  He was stooped forward and just a little bit slower than you would expect to get up from a chair, so that wasn’t an inconsistent thing that I would think - - -

Yes.  I’m more interested in the movement in the video compared with - - -?---Oh, the rolling.

- - the difficulty getting on and off the toilet, for example?---He seemed to move reasonably freely in the video, but you know, in terms of speed and agility, although he did - his range was not - his range was what I saw in the office, like, he didn’t actually go more than 45 degrees forward flexion.  He was - he was probably slightly a little bit more rotating than he was in the office, but apart from that it wasn’t inconsistent, I didn’t think.  yes.”

42                  This was the only opportunity Mrs Stephenson was given to address the applicant’s movements which were demonstrated on the film.  The Tribunal found the videos particularly compelling evidence in contrast to the impact they had on the occupational therapist and indeed on senior counsel who appeared for Comcare at the hearing before the Tribunal and in this Court:  counsel’s cross-examination of the applicant on the videos elicited the comment from the Tribunal as to its surprising brevity set out above.  But it can be questioned whether the way the therapist responded to cross-examination on the videos as recorded in the transcript justifies dismissing the whole of her evidence because of what the Tribunal described as her failure to address the applicant’s movements demonstrated on the film.

43                  The Tribunal then considered the conflicting medical evidence, expressly accepted the evidence of Drs Hazelton and Tuffley, and said it preferred their evidence and opinions wherever they conflicted with the evidence and opinions of the other medical witnesses.

44                  Dr Tuffley examined Mr Norton at the request of the latter’s solicitors in August 1996 and again in January 1997.  He considered that the work incident of November 1976 represented “a significant aggravation of pre-existing age related degenerative change within the L4/5 disc” and that further episodes of pain which occurred (in 1977 and 1978 and 1981) while he was working at the Darwin airport represent further, more minor, aggravation of his pre-existing degenerative disc disease.  He reported that there “did appear to be an element of symptom promotion” and that while Mr Norton “expresses a considerable disability, perhaps in the order of 30%”, only 15%, in Dr Tuffley’s opinion, related to physical impairment, the balance relating to “the subjective factors mentioned above”.  Dr Tuffley considered that his condition had stabilised by 1996 with no further deterioration likely because of the spontaneous fusion that had occurred between the relevant vertebrae.   He also said that he thought Mr Norton would have been able to continue working as Assistant General Manager with Air Services Australia, though he would have had to receive ongoing treatment for his back and may, on several occasions in the course of a year, have had to take up to a week or two off work for episodes of acute lumbar back spasm.

45                  Once again the Tribunal, in a significant respect, misstated the evidence.  After summarising Dr Tuffley’s report in par 32, it turned to his oral evidence.   Of this the Tribunal said:

“33.     Dr Tuffley gave evidence also that the report of Dr Stewart of 11 July 1977 … which stated that on examination of the applicant, there was no evidence of any back disability at that time, was in contrast with the degree of injury described to him by the applicant.  Dr Tuffley considered it more likely in these circumstances, that the injury of 1 November 1976 was a muscle strain.”

46                  What Dr Tuffley said when Dr Stewart’s report was drawn to his attention in the witness box was quite different:

“… In relation to whether it was temporary, ‘when would they have ceased’, he says, ‘Two weeks’, and then he says a muscle strain.  My first question is were you aware of any of this?---No, not until you shows (sic) this to me briefly outside today.

This is - - -?--- It’s in conflict with the degree of injury which Mr Norton described to me.  He described to me a more significant injury which was more disabling, whereas this report seems to suggest that it was a muscle strain, according to the doctor, which would settle within two weeks, so I may have questioned him more closely over that point if I’d had this conflicting evidence.”

47                  When Dr Tuffley’s attention was drawn to a record of a note made by Mr Norton’s general practitioner on 12 November 1976, ie, about a week and a half after the back injury: “Much better virtually no pain”, and was asked whether that would make a difference, Dr Tuffley replied:

“Yes, well, it’s the same reply basically, that that’s in conflict with what he told me with regard to the severity of the injury, and again I’d have to question him more closely about how severe his injury was to try and determine which was more correct, his description of it being more significant or these doctors’ descriptions stating that it was muscle strain and not particularly severe.”

48                  But that is as far as Dr Tuffley went.  He did not resile from the opinion he expressed in his written report set out above.  In particular, he did not change his evidence, as the Tribunal wrongly found, to saying that he “considered it more likely in these circumstances, that the injury on 1 November 1976 was a muscle strain”.  Once again, the Tribunal misapprehended the evidence in a way adverse to Mr Norton.

49                  This is a particularly important mistake by the Tribunal.  I have already referred to what the Tribunal said of Dr Hazelton’s evidence, viz, “that the applicant’s back complaint is due wholly to his intrinsic degenerative spine disease, and unrelated to the 1976 incident”.  There was a clear conflict between Dr Hazelton and Dr Tuffley, the one being of the view that the back injury in November 1976 was a temporary episode only and that Mr Norton’s subsequent back problems were all due to the natural progression of his pre-existing degenerative disease, while  the other, Dr Tuffley, remained of the view that the injury in 1976 had significantly aggravated his pre-existing condition and was responsible for 10% of the 15% physical impairment of the back which he considered the applicant had when he saw him in 1996 and 1997.  The Tribunal, by misstating in its reasons Dr Tuffley’s response to what the Commonwealth Medical Officer had to say in 1977 and what Mr Norton’s general practitioner had to say in mid November 1976, mistakenly thought it could accept both Dr Hazelton and Dr Tuffley’s evidence and could prefer their evidence where it conflicted with the other medical evidence more supportive of Mr Norton’s case.  In fact, there was an irreconcilable conflict between the evidence of Dr Tuffley and Dr Hazelton which the Tribunal failed to identify because it misunderstood Dr Tuffley’s evidence.

50                  There is ample material before the Tribunal to justify it in reaching the conclusion it did on both issues identified by counsel for its determination and referred to above.  But there was also a body of other evidence sufficient to show that that is not the only conclusion that was open to the Tribunal on the issue of whether the applicant continued in the 1990s to suffer from the effects of his back injury in 1976.

51                  In my opinion, more than simple errors of fact were made by the Tribunal.  Though this case is, I think, near the borderline of unreasonableness, the Tribunal has made so many errors of fact, each significant, though to differing degrees, in reasoning to its decision that it can be said to have made that decision “in a manner so devoid of plausible justification” that it is flawed for Wednesbury unreasonableness.  If it had not misstated the evidence of Messrs Rispoli and Butcher and Mrs Norton, and especially Dr Tuffley, it could not have come to the conclusion it did by the path it followed.

52                  For these reasons, the decision under appeal will be set aside and the matter remitted to the Tribunal, differently constituted, for redetermination, with liberty to receive further evidence.

Associate:

Dated:              4 August 2000