FEDERAL COURT OF AUSTRALIA

Gabelish v Comcare [2001] FCA 618

ADMINISTRATIVE LAW – appeal – compensation for government employee – whether tribunal in error of law – whether tribunal took into account irrelevant consideration – whether tribunal failed to take into account a relevant consideration – whether tribunal failed to consider whether evidence of a contributing factor or contributing factor to a material degree – relevance of findings of no causal connection

WORKERS COMPENSATION – government employee – whether tribunal in error of law in not considering whether evidence established a contributing factor or a contributing factor to a material degree

Administrative Appeals Tribunal Act 1975 s 44(1)

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, applied

Waterford v Commonwealth (1987) 163 CLR 54, cited

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, referred to

Reg v District Court; Ex parte White (1966) 116 CLR 644, cited

ANTHONY JOHN GABELISH v COMCARE

W 151 of 2000

RD NICHOLSON J

29 MAY 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application by way of appeal be dismissed

2.                  The applicant pay the respondent’s costs of the application to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     The applicant appeals from a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 August 2000.  The decision affirmed a decision made on 6 February 1998 affirming a determination made on 27 March 1997 that the Department of Defence is not liable to pay compensation to the applicant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) in respect of osteoarthrosis of the left knee and left middle finger.

2                     The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and therefore is required to be brought “on a question of law”. 

Factual background

3                     The applicant was born on 20 August 1931.  He served in the Royal Australian Navy from 10 March 1949 until 22 September 1959. 

4                     On 24 January 1952 (the date accepted by the Tribunal) the applicant suffered lacerations to his left knee and left middle finger when he was involved in a motor cycle accident.  There was a question whether he was (as he claimed) on his way to receive leave pay or whether he was off duty.  The Tribunal found it unnecessary to consider that issue, assuming for the purposes of its reasoning that the accident occurred in the course of the applicant’s employment by the Commonwealth.

5                     The accident occurred when the motor cycle which the applicant was driving slipped on the road surface and he and his pillion passenger were thrown heavily to the ground.  There was a further factual issue as to whether the vehicle had been forced from the road, but it was not necessary for that to be determined. 

Tribunal’s findings of fact

6                     The Tribunal concluded in relation to the evidence as follows:

“39.     On the basis of the medical evidence before it – namely, the medical reports and oral evidence of Mr Tiller and Mr Batalin – the Tribunal finds that the applicant presently suffers from the following relevant conditions:

·        moderately severe or reasonably advanced progressive degenerative osteoarthritis in both knees, although slightly more advanced in the left knee;

·        early or minor arthritic changes in the proximal interphalangeal joint in the middle finger of the left hand, with a tendency of “triggering” in that finger;

40.              On the basis of the applicant’s oral evidence and other material before it, the Tribunal finds that:

·        the applicant’s present left knee condition became symptomatic in 1987 and he then, for the first time, sought medical treatment for it;

·        the applicant’s present left middle finger condition became symptomatic in the early to mid 1990s and the condition was first medically diagnosed in 1995 in connection with the applicant’s claim for a disability pension under the Veterans’ Entitlements Act 1986.”

7                     The Tribunal then proceeded to consider, on the basis of the medical reports and oral evidence of medical experts, Mr Tiller (for the applicant) and Mr Batalin (for the respondent), whether either or both of the abovementioned conditions related to his employment by the Commonwealth in the Navy between the abovementioned dates.  It was not satisfied on the balance of probabilities that his present left knee and left middle finger conditions were related to or are the consequence of his motor cycle accident in January 1952.  It found that they were “not related to or the consequence of, and do not arise out of, his motor cycle accident on 24 January 1952 or his employment by the Commonwealth”. 

Tribunal’s findings on compensability

8                     The Tribunal then considered whether either of the conditions was compensable under the 1988 Act.  It did so on the basis that the applicant’s claim for compensation had been lodged on 24 May 1996.  It found that as at that date:

“the applicant claimed compensation under the 1988 Act in respect of “osteoathrosis” in the “left knee/ left middle finger” which became symptomatic in 1987 (in the case of the left knee) and the early to mid 1990s (in the case of the left middle finger) and which he attributed to the motor cycle accident in which he was involved in January 1952.”

9                     In relation to the left knee condition, in respect of which the applicant at first suffered osteoarthritis in 1987, the question was whether that condition was compensable under the 1988 Act which in turn depended on whether it was compensable under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”):  see s 124 of the 1988 Act.  That in turn made the Commonwealth Employees’ Compensation Act 1930 (“the 1930 Act”) relevant.  The Tribunal referred to the relevant statutory provisions as follows:

“49.     Under s27(1) of the 1971 Act personal injury was, subject to and in accordance with the Act, compensable by the Commonwealth in the case of an injury caused to an employee “arising out of or in the course of the employment of [the] employee by the Commonwealth”.  Section 29 of that Act relevantly provided:

            “(1)      Where –

(a)                an employee contracts a disease…; and

(b)               any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease…,

the succeeding provisions of this section have effect.

(2)           If –

…

(e)                the total or partial incapacity for work of the employee,

results from the disease … then, for the purposes of this Act, unless the contrary intention appears –

(f)                 the contraction of the disease … shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and

(g)                … the date of the commencement of the incapacity or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of injury.”

In s5(1) of the 1971 Act the term “disease” was defined to include

            “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development”

and the term “injury” was defined, relevantly, to mean “any physical or mental injury” but, subject to s29, not to include a disease.”

10                  In applying these provisions the Tribunal concluded as follows in respect of the left knee condition:

“50.     The applicant’s left knee condition of progressive degenerative osteoarthritis is clearly a “disease” as defined in s5(1) of the 1971 Act.  Accordingly, that condition would have been compensable under s29 of the Act provided that the applicant’s employment by the Commonwealth was “a contributing factor” to the contraction of that disease.  The Tribunal has already found (see paragraphs 42-43 above) on the basis of the medical evidence before it that the applicant’s knee condition is not related to or the consequence of, and does not arise out of, his motor cycle accident in January 1952 or his employment by the Commonwealth.  Accordingly, the Tribunal finds that the applicant’s motor cycle accident in January 1952 or his employment by the Commonwealth was not a contributing factor to the contraction of his present left knee condition.  That condition would not, therefore, have been compensable under the 1971 Act.  It follows that that condition is not compensable under the 1988 Act.”

11                  In relation to the left middle finger condition, the arthritis had first been suffered in the early to mid 1990s so that the question whether the condition was compensable fell to be determined under the provisions of the 1988 Act alone.  The Tribunal reasoned as follows in relation to this aspect:

“52.     The relevant provisions of the 1988 Act – namely s14(1) and the definitions of “ailment”, “disease”, “injury” and “impairment” in s4(1) – have already been set out in paragraph 45 above.

 53.      The applicant’s left middle finger condition is clearly an “ailment”, as defined in s4(1) of the 1988 Act.  In order to constitute an ”injury” (being a “disease”), within the meaning of the definitions of those terms in s4(1) of the 1988 Act, however, that condition (or “ailment”) must be one that “was contributed to in a material degree” by the applicant’s employment by the Commonwealth.  In order to constitute an “injury (other that a disease)”, within the meaning of the definition of the term “injury” in s4(1) of the 1988 Act, on the other hand, that condition must constitute a physical injury “arising out of, or in the course of,” the applicant’s employment.  The Tribunal has already found (see paragraphs 42-43 above) on the basis of the medical evidence before it that the applicant’s left middle finger condition is not related to or the consequence of, and does not arise out of, his motor cycle accident on 24 January 1952 or his employment by the Commonwealth.  Likewise, the Tribunal finds that the applicant’s left middle finger condition or “ailment” was not “contributed to in a material degree”, or at all, by his motor cycle accident in January 1952 or his employment by the Commonwealth.  That condition is, therefore, neither an “injury” (being a “disease”) nor an “injury (other than a disease)”, as defined in s4(1) of the 1988 Act and is, accordingly, not compensable under s14(1) of that Act.”

12                  Accordingly, the Tribunal affirmed the decision under review and it was not necessary for it to consider other issues raised by the parties.

Grounds of appeal

13                  The grounds of appeal as identified in the notice of appeal were arguably open to objection on the ground that they did not identify a question of law or in part did not do so.  In an endeavour to meet such an objection the counsel for the applicant recast the grounds of appeal during the hearing and leave was given for the notice of appeal to be amended to incorporate them in the following form:

“4.1     It is submitted that the Tribunal committed the following errors of law:

(a)               The Tribunal took into account the unreasoned opinion of an expert without the necessary findings of fact and this took into account an irrelevant consideration.

The Tribunal failed to take into account Dr Batalin’s evidence about what he meant by “causal connection” and thus failed to take into account a relevant consideration.

(b)               It failed to make, as above, findings it was legally required to make by S4(1) of Safety, Rehabilitation and Compensation Act (1988) Cth and s29(1)(b) of the Compensation (Commonwealth Government Employees) Act (1971) Cth in that it failed to find whether any employment of the applicant by the Commonwealth was a contributing factor to the contraction of the applicants left knee condition and it failed to find if the applicants left finger condition was contributed to a material degree by the applicant’s employment by the Commonwealth.”

Medical evidence

14                  The grounds of appeal as recast require attention to the medical evidence before the Tribunal. 

15                  Of the evidence of Mr Tiller (for the applicant), the Tribunal said the following:

“Mr Tiller’s evidence in relation to this matter was somewhat equivocal.  In his report of 16 February 1999 (Exhibit A7) he stated that it was “difficult to say” that the applicant’s present left middle finger condition is “directly related” to the left middle finger injury he suffered in the motor cycle accident in 1952.  As regards the applicant’s left knee, Mr Tiller commented in his report that the applicant “may well have been left with some degree of patello-femoral degenerative disease following his fall” in the 1952 motor cycle accident, but immediately added that it was “obvious that he has bilateral degenerative disease in regard to his knees”.  Later, Mr Tiller opined that, having regard to the fact that the applicant has similar degenerative changes in both knees, but worse in the left knee, it was arguable that he suffered from “patello-femoral changes at the time of his accident, which in turn have an ongoing effect within the knee joint itself”.  Finally, he commented that “it is hard to be completely convinced that [the applicant’s present left knee and left middle finger conditions] are entirely associated with his accident of January 1952”.  In his oral evidence Mr Tiller essentially reiterated the opinion stated in his report of 16 February 1999.  In particular, when asked whether he would attribute the more advanced degenerative condition of the applicant’s left knee to his motor cycle accident in 1952, Mr Tiller responded that it “could be associated with it”.”

16                  Of the evidence of Mr Batalin (for the respondent), the Tribunal said:

“Mr Batalin, on the other hand, was clearly and firmly of the opinion, as stated in his oral evidence, that on balance there is no casual relationship between the applicant’s 1952 motor cycle accident and his present left knee and left middle finger conditions.  He, furthermore, articulated 6 grounds on which that opinion was based.  The Tribunal is persuaded by Mr Batalin’s reasoning and, in the absence of any medical evidence which clearly and unequivocally contradicts Mr Batalin’s opinion, the Tribunal accepts that opinion.”

17                  The reference to the articulation by Mr Batalin of 6 grounds had previously been referred to by the Tribunal in its reasons in the following terms:

“35.     In his oral evidence Mr Batalin confirmed his findings that the applicant has degenerative changes in both knees as well as some degenerative changes in the joints of the hands.  He noted that the applicant has a history of gout and commented that gout classically can affect joints and present as painful, swollen joints and can lead to progressive degenerative joints.  Asked by Mr Nash (for the respondent) about a possible causal relationship between the applicant’s motor cycle accident in 1952 and his present arthritic condition, Mr Batalin confirmed that he could not establish such a relationship for the following reasons:

·        that accident occurred many years ago and the contemporary medical documentation suggested a superficial injury (laceration) to the knee and finger (which subsequently healed) with no evidence of significant bone or joint damage;

·        a long period of time elapsed between the injury and the onset of symptoms;

·        that fact that the applicant’s knee symptoms are bilateral, and not confined to the left knee which was originally injured;

·        progressive degenerative osteoarthritic changes in the joints are common in persons who are ageing;

·        other factors may have contributed to the acceleration of the applicant’s osteoarthritis, including playing contact sport and participating in physical labouring activities such as farming; and

·        the fact that the applicant has been diagnosed as having gout – a documented and recognisable cause of polyarthritis.”

18                  The Tribunal went on to state:

“Asked again by Mr Nash whether, in his opinion, on balance there is a causal  connection between the applicant’s 1952 motor cycle accident and his current left knee and left finger conditions, Mr Batalin responded in the negative in relation to each condition.  Mr Batalin was subjected to vigorous cross-examination by Mr Marsh (for the applicant) in relation to his stated opinion that there is no causal relationship between the applicant’s 1952 motor cycle accident and his present left knee and left middle finger conditions but nevertheless strongly adhered to that opinion.  Finally, in response to questions from the Tribunal, Mr Batalin was, however, prepared to acknowledge the possibility that the left knee injury sustained by the applicant in his 1952 motor cycle accident is responsible for the “slightly greater degenerative changes” in his left knee as compared with his right knee.  Asked whether this was a probability, rather than a mere possibility, Mr Batalin responded that he was unable to say.”

Whether irrelevant consideration taken into account

19                  It is contended in support of the first paragraph of the first ground of appeal that the Tribunal erred in taking into account the 6 points which it listed arising from the evidence of Mr Batalin and supporting his conclusion of the absence of any relationship between the accident and the arthritic condition.  The foundation of this submission is that the Tribunal accepted the 6 factors as ones which “could not establish such a relationship”.  However, it is submitted they were, therefore, not factors which established that there was no such relationship.  In other words, it is submitted that the 6 factors were used to support a different proposition.

20                  Examination of the relevant cross-examination shows that when Mr Batalin was asked whether there was a causal connection between the accident and the conditions and he responded in the negative, that was an ultimate development of the evidence which he has previously given.  The course of his evidence was all relevant material to comprehending his ultimate conclusion.  There is no basis on which it can be properly contended that the 6 factors were irrelevant considerations to the issue before the Tribunal. 

Whether failure to take into account relevant consideration

21                  Turning to the second paragraph of the first ground of appeal it is contended that the Tribunal failed to consider Mr Batalin’s evidence on what he meant by causal connection.  Reference to the transcript shows that Mr Batalin testified that “connection” usually meant relationship and effect.  He said that cause is when a particular event or occurrence is attributed to a particular precipitating factor.  He added that connection “means there is coupling, perhaps link, perhaps effect”.  He also testified that a precipitating factor meant a factor following on, the result of or outcome of a particular event.

22                  In my view no case can be made that the Tribunal attributed to Mr Batalin’s comprehension of causal relationship a meaning which failed to have regard to the relevant consideration of his evidence.  The real complaints sought to be addressed by this route is that which arises under the second ground of appeal.

Whether Tribunal failed to make findings required by legislation

23                  The principal thrust of the appeal rests in the matter sought to be addressed by the second reformulated ground of appeal.  It is that, in concluding there was no causal connection between the accident and the conditions, the Tribunal failed to have regard to whether the accident could have been “a contributing factor” to the applicant’s left knee condition or whether the applicant’s left middle finger condition “was contributed to in a material degree” by the applicant’s employment by the Commonwealth.

24                  It is not the case that the Tribunal failed to address that issue.  In the case of both the left middle finger condition and the left knee condition the Tribunal made express findings on each of those issues. 

25                  What is contended in support of the ground is that in reality there was no evidence to support such a finding because all the Tribunal had before it was the evidence from which it concluded that in respect of both the conditions they were “not related to or the consequence of, and do not arise out of, his motor cycle accident on 24 January 1952 or his employment by the Commonwealth”.  The thrust of the submission is that the medical evidence was directed to the issue of “causal relationship” and therefore simply did not address whether either of those were a contributing factor in the requisite way. 

26                  In my opinion that submission, whether it supports a presently formulated ground of appeal or not, is misplaced and founded on a misconstruction of the course of the evidence.  When the Tribunal reached the conclusion just expressed that there was no relevant causal relationship, it was putting beyond the realm of possibility that the medical evidence could establish any condition of contributing factor.

27                  It is of relevance in this consideration that reference to the course of cross-examination on behalf of the applicant does not show questions directed to Mr Batalin in relation to the issue of the existence of whether a contributing factor required or attracted different evidence from him than that relating to causal relationship.  In response to a question from the Tribunal Mr Batalin stated that it could have been that the original injury was responsible for slightly greater degenerative changes in the left knee.  In the face of that evidence the Tribunal nevertheless acted on the abundance of evidence before it to conclude there was no causal relationship.  Examining the course of the evidence it is clear that by that conclusion the Tribunal placed beyond the bounds of possibility that there could be any contributing factor.  For that reason it expressly so found.  In doing so it referred to the evidence of the expert for the applicant, Mr Tiller which at the highest was only that the motor cycle accident in 1952 “could have” been associated with the more advanced degenerative condition of the applicant’s knee, not that it was a contributing factor to that condition. 

28                  In Treloar v Australian Telecommunications Commission (1990) 97 ALR 321 the Full Court (Sweeney ACJ, Sheppard and Foster JJ) said:

“The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature.  It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of.  The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.  Once the link is established, however, it matters not that the contribution be large or small.”

This was not a case where it could be said that the two pieces of evidence referred to immediately above viewed in the context of the evidence as a whole established in fact and in truth the condition of contribution (if that issue arises under the grounds of appeal or properly at law).

29                  Furthermore, reference to the transcript shows that the way in which Mr Batalin understood “causal relationship” was that it included any type of relationship.

Conclusion

30                  For the respondent it is said that the issues raised by each of the grounds of appeal are fundamentally issues of fact.  It is well established that there is no error of law in the making of a wrong finding of fact:  Waterford v Commonwealth (1987) 163 CLR 54 at 77 referred to in Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 356.  Likewise, an illogical inference of fact does not amount to an error of law on the face of the record:  Reg v District Court; Ex parte White (1966) 116 CLR 644 at 654 also cited in Bond at 356.  Nevertheless the case for the respondent does not seek to exclude the application on the basis that the grounds do not raise questions of law. 

31                  Having addressed the grounds in a way which takes them at their highest, from the applicant’s viewpoint, I do not consider that any of them can be made out.  Accordingly, the “appeal” should be dismissed. 

Associate:

Dated:              29 May 2001