FEDERAL COURT OF AUSTRALIA

Australian Postal Corporation v Bessey

[2001] FCA 266

ADMINISTRATIVE LAW – whether error of law by Administrative Appeals Tribunal – meaning of incapacity resulting from injury pursuant to ss 14(1) and 19(1) of the Safety Rehabilitation & Compensation Act 1988 (Cth) – meaning of injury in s 4(1) of the Act – meaning of “aggravation of underlying condition”

PRACTICE AND PROCEDURE – procedural fairness – whether breach of rule to deny party ability to show video tape to witness in cross examination – where evidence ruled inadmissible for any purpose – where no prior ruling or direction made as general practice direction or as express direction on procedure in the case

WORDS AND PHRASES – “procedural fairness”

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Salisbury v Australian Iron & Steel Ltd (1943) 44 SR (NSW) 157 followed

Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 followed

Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 followed

Casarotto v Australian Postal Commission (1989) 86 ALR 399 followed

Re Prica and Comcare (1996) 44 ALD 46 cited

Australian Postal Commission v Hayes (1989) 23 FCR 320 applied

Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 cited

Rose & Bloxham v AE Bridges (1997) 79 FCR 378 cited

Re An Application for Writs of Certiorari and Mandamus against Burton;  Ex parte Burns [1998] WASC 98 cited

Robbins v Harbord (1994) 62 SASR 229 cited

BHP Pty Co Ltd v Mason (1996) 67 SASR 456 cited

AUSTRALIAN POSTAL CORPORATION v DEREK BESSEY

A 41 OF 2000

GYLES J

CANBERRA

20 MARCH 2001

THE COURT ORDERS THAT:

1.                  The decision of the Administrative Appeals Tribunal dated 23 May 2000 is set aside.

2.                  The matter be remitted to the Administrative Appeals Tribunal for rehearing according to law.

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 by the Australian Postal Corporation (“Australia Post”) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from part of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 23 May 2000.

2                     The respondent, Mr Bessey, was employed to deliver mail for Australia Post using a step through motor bike between 1989 and 1997.  In February 1997 the respondent was placed on restricted duties that did not involve bike riding due to lower back pain. On 1 July 1997 the respondent lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The respondent’s claim for compensation was initially accepted “in respect of degenerative spondylosis”.  On 16 December 1997 a determination was made to cease compensation payments to the applicant under the Act and this decision was affirmed by a decision of an Independent Review Officer on 19 February 1998. On application to review the latter decision, the Tribunal set aside the decision under review and in its stead found that the respondent was incapacitated for work as a result of an injury to his back and was therefore entitled to compensation.  Not all of the grounds of appeal from that decision have been pursued and the cross appeal has not been pursued.

3                     There are two grounds of appeal persisted in – one substantive and the other procedural.  The first relates to an issue concerning aggravation of the underlying degenerative spondylosis of the lower back. The second is that there was a denial of procedural fairness due to the decision of the Tribunal to reject the applicant’s video surveillance evidence.

Aggravation

4                     This ground of appeal raises, once again, the issue of compensation for the effect of work upon an underlying condition – in this case, spondylosis.  Australia Post submits that the real issue in the case was whether the effect on the applicant from riding the motor bike was temporary, such that the discomfort it caused ceased either once or shortly after the time Mr Bessey ceased riding motor bikes as part of his duties on 3 February 1997.  Australia Post submits that the Tribunal either never resolved this issue or resolved it in  favour of Australia Post.

5                     Compensation for incapacity is only allowed under the Act if it “results” from an "injury" (s14(1) and s19(1)). An "injury" is defined in s 4(1) of the Act to include "(a) a disease suffered by an employee;.." The definition of disease in section 4(1) is:

“(a) any ailment suffered by an employee;

(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.”

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) 167 CLR 533 and Casarotto v Australian Postal Commission (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.

7                     In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.

8                     This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury.  To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect.  The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work related injury  (including aggravation) but rather resulted from the underlying condition.

9                     The Tribunal’s conclusion on the relevant point was as follows:

“39.     Thus, we find that the riding of the bike did aggravate the applicant’s back condition.  The primary support for this view may be found in the reports of the respondent’s medico-legal consultants, and is consistent and supported by the reports of the applicant’s medico-legal consultants. (emphasis added)

40.              We also find that the riding of the bike contributed in a material degree to this aggravation.  We note that all medical reports (apart from Dr Smith, who did not consider the applicant’s back) saw a clear and significant link between the bike-riding and the aggravation of the applicant’s back condition.  Dr Scott’s report identified the applicant’s motor-bike riding as the source of the aggravation of the applicant’s spondylosis, (above para 22), and recommended that the applicant not ride the bikes.  Dr Chen’s view was that “[t]he previous episodes of low back pain appear to have been associated with motorcycle riding, and it is consistent that this condition may be temporarily aggravated by the latter and other activities such as heavy manual loading” (above para 25).  She thought that he was incapacitated from riding the bikes.  Dr McGill thought that riding on the motor bike increased his back symptoms while he was performing that activity (above para 29).  Dr Griffith thought that the motor-bike riding was a significant contributor to aggravating symptoms of the lumbar spine (transcript p 166-167).”

10                  When the Tribunal’s analysis of Australia Post’s medico-legal consultants is taken into account it is apparent that, when dealing with spondylosis, the Tribunal misunderstood the nature of aggravation in the legislation.  As appears from pars 25 to 33 of the reasons of the Tribunal, Dr Chen and Dr McGill made it quite clear that the bike riding, whilst increasing the symptom of pain whilst the activity took place (and to that extent aggravating the spondylosis) did not produce any permanent underlying change in the back which, after a very limited period, was as it had been with symptoms entirely related to constitutional degenerative change.  If this were correct, the authorities to which I have referred establish that there would be no relevant aggravation of the underlying condition and no incapacity arising therefrom. 

11                  The Tribunal had said earlier:

“11.     … we find that the applicant suffers from degenerative spondylosis of the lower back.  This condition is not attributable to the work the applicant has undertaken as an employee of Australia Post.  We note that an X-ray taken of the applicant’s back in January 1987 (Exhibit R 2) revealed the underlying condition.  At this point, the applicant had for some years been working as a motor-bike postman, but we accept the respondent’s submission that this work had not made a material contribution to the onset of that condition.  Nor do we consider that taking a view at January 1997, it may be found that the applicant’s work as a motor-bike postman had “accelerated” the adverse (to the applicant) progress of the underlying condition.  But the opinions of a number of medical experts – including medico-legal consultants of the respondent – are to the effect (although they may not put it in the words of the Act) that this work “aggravated” the underlying condition.  On this basis, the applicant was, at the time he ceased to ride the motor-bikes, suffering from an “injury” as defined in section 4(1).  This is so on the basis that he suffered from a “disease”.  In turn, this rests on the bike riding being an aggravation of the disease of degenerative spondylosis.  This aggravation was “contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”. 

12                  From my consideration of pars 11, 39, and 40 of the reasons I conclude that the Tribunal acted on the view that the pain suffered by the respondent whilst riding the bike was an aggravation and, as that pain was incapacitating, there was therefore an entitlement to continuing compensation.  This was an error of law.  It was a curious error, as the Tribunal dealt with a complaint about the effect of walking on the left knee at pars 90 and 91 of the reasons in a completely orthodox fashion.  It is as if the reasons concerning the back and the knee were written by different Tribunals.  This has caused me to scrutinise the reasons with care to ensure that the problem is not caused merely by infelicitous language.  The Tribunal’s express reliance upon the evidence of Australia Post’s consultants for the decision in relation to the back (see par 39) leaves no room for that conclusion.

13                  There is a question as to what should be done.  It is submitted on behalf of Australia Post that when the reasons, particularly par 11, are understood, the Tribunal in fact found that there was no relevant aggravation, with the result that the Tribunal was bound to reject the application to review the decision.  On the face of it, this is correct.  However, it seems to me that somehow the Tribunal was diverted from the real issue (perhaps by the excursus on the law from pars 12 to 20) and did not resolve the conflict which existed between various of the medical witnesses on the crucial question.  In those circumstances, the appropriate course is to remit the matter to the Tribunal to rehear the application in accordance with law.

Video Evidence

14                  This conclusion makes it strictly unnecessary to deal with the procedural issue.  However, as the matter is to be reheard, it is as well that I say something about the issue.

15                  During cross examination of the respondent, counsel for Australia Post sought to show the witness some video tape.  The senior Tribunal member intervened, indicated an adverse view as to that request and referred counsel to his decision in Re Prica and Comcare (1996) 44 ALD 46 (“Prica”).  A ruling was deferred until the following morning.  On the following day there was considerable argument.  Counsel for the respondent put, amongst other things, that his client was prejudiced as agreement had been reached that the doctors would give evidence by telephone and could not see the video.  He also submitted that he would not be in a position to immediately call rebutting evidence.  The video was ruled inadmissible for any purpose, with reasoning to be delivered later.  The reasons of the Senior Member were included in the final Tribunal decision.  The Senior Member said:

“140.   … the nub of my reasoning was as follows.  The respondent did not give notice of the existence of the video to the members of the Tribunal or to the applicant.  The applicant was ambushed.  The video film was not disclosed to the applicant until well into his cross-examination.  The opportunity for inspection was to occur at the time of disclosure.  To admit the video into evidence would have denied the applicant a proper opportunity to present his case.  The means to avoid this consequence was to refuse to admit the evidence.”

16                  That view is directly contrary to a considerable body of authority in this and other Courts.  It will suffice to refer to Australian Postal Commission v Hayes (1989) 23 FCR 320 (“Hayes”), Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 at 424.1, Rose & Bloxham v AE Bridges (1997) 79 FCR 378 at 387C-G, Re An Application for Writs of Certiorari and Mandamus against Burton;  Ex parte Burns [1998] WASC 98, Robbins v Harbord (1994) 62 SASR 229 at 237.8 and BHP Pty Co Ltd v Mason (1996) 67 SASR 456 at 461-465.  Those authorities establish that, absent special circumstances, Australia Post was denied natural justice or procedural fairness at least in not being able to show the video to the respondent in cross examination and ask questions based upon that.

17                  The full reasons of the Senior Member are too lengthy to set out in this judgment.  In large measure they reflect the opinion he had expressed in the decision in Prica to which he referred when the issue first arose.  They reflect a developed and reasoned view as to the general policy which the Tribunal should adopt in relation to video evidence, which is directly at odds with the line of authority to which I have referred, particularly Hayes.  There is some attempt to distinguish Hayes, and some reference to the circumstances of the particular case, but the decisive consideration was general policy and the philosophy underlying it.  In my opinion it was not open to an individual senior member of the Tribunal to choose to depart from the effect of decisions of this Court on policy grounds, whatever the merits of those policy grounds might be.  To do so was, in itself, an error of law which, on the basis of binding authority, has the effect of denying Australia Post natural justice or procedural fairness which, it was agreed by the parties, is also an error law within s 44 of the AAT Act.

18                  I should make it clear that in my opinion the complaints of counsel for the respondent as to the availability of medical evidence and other rebutting evidence is not relevant to the issue as to whether Australia Post was entitled to show the video to the respondent in the course of cross examination.  Those issues would arise if and when some other use was sought to be made of the video.

19                  I am not dealing here with either the giving of a general practice direction by the President of the Tribunal or with the giving of express directions as to procedure in advance of the hearing of a particular case.  Those situations are distinct from the present and can be considered when and if necessary.  The decision of the Senior Member in Prica was not the equivalent of either and should not have been regarded as if it were.

orders

20                  The decision of the Tribunal is set aside and the matter is remitted to the Tribunal for rehearing according to law.  Costs are a difficulty as the grounds of appeal were, in substance, occasioned by the Tribunal rather than the respondent.  In the circumstances I decline to make any order as to costs.

Associate:

Dated:              20 March 2001