FEDERAL COURT OF AUSTRALIA

Nipperess v Military Rehabilitation and Compensation Commission

[2006] FCA 943

ADMINISTRATIVE LAW – claim for compensation for alleged injury during military service – failure to consider issues raised by the evidence – whether finding of no evidence justified – whether Tribunal improperly confined itself because of questions asked of applicant – whether questions amounted to procedural unfairness – aggravation not claimed by applicant – whether evidence raised issue of aggravation which Tribunal was obliged to consider – duty owed to unrepresented litigant

Held: (1) The Tribunal did not err in finding that the evidence did not support the claim of the applicant to have suffered subclinical compression fractures during his period of service.

(2) The evidence before the Tribunal relating to aggravation in the absence of a compression fracture was too skimpy and uncertain to oblige the Tribunal to consider the issue in the absence of any claim by the applicant on that ground.

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4

Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368 considered

Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1 referred to

Mifsud v Campbell (1991) 21 NSWLR 725 referred to

Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124 applied

Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 referred to

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 referred to

Neil v Nott (1994) 68 ALJR 509 applied

Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986) considered

Re Martin and Commonwealth (1983) 5 ALD 277 referred to

Riordan v Australian Sports Drug Agency (2002) 120 FCR 424 considered

Sullivan v Department of Transport (1978) 20 ALR 323 considered

KEVIN NIPPERESS vMILITARY REHABILITATION AND COMPENSATION COMMISSION

NSD 1964 of 2005

COWDROY J

26 JULY 2006

SYDNEY

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

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

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal in respect of a claim by the applicant for compensation for an employment-related injury made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’). The Tribunal affirmed the decision of the Military Rehabilitation and Compensation Commission that the applicant was not entitled to compensation.

BACKGROUND

2                     The applicant is 73 years old.  Between 1951 and 1973, he spent approximately ten years serving in the Australian Armed Forces, part of which (from 1960 to 1966) was spent as a roping and climbing instructor.

3                     On 29 July 1990 the applicant made a claim for compensation pursuant to the SRC Act, claiming that he had suffered spondylosis as a result of successive strains and injuries which occurred during his employment as a rock climbing instructor. A document in the appeal book describes spondylosis as:

‘degenerative changes affecting the intervertebral discs of the spinal column, leading to changes in the surrounding structures. It is usually applied to changes occurring within and around the vertebral bodies and disc spaces. The cervical and lumbar regions are those usually affected.’

4                     The applicant did not have any notable symptoms of spondylosis until 1984, and the medical reports provided to the Tribunal noted that the applicant did not recall suffering any pain at the time of his service.

5                     In order to be entitled to compensation, the applicant must have an ‘injury’ as defined in s 4 of the SRC Act. That definition includes:

‘(a)      a disease suffered by an employee; or

(b)       an injury (other than a disease) suffered by an employee, being a physical or a mental injury arising out of, or in the course of, the employee’s employment;

(c)        an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

…’

A ‘disease’ is defined in s 4 to include:

‘(a)      any ailment suffered by an employee; or

(b)               the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth …’

6                     The Military Rehabilitation and Compensation Commission determined that the applicant was not entitled to compensation because he did not have an injury as defined in the SRC Act. The applicant appealed this decision to the Tribunal.

7                     The applicant was unrepresented before the Tribunal. Counsel for the respondent at the Tribunal, Mr Polin, submitted at the outset of the hearing that the issue between the parties ‘seemed to be simply a medical dispute between … Mr [sic] McGill and Dr Maxwell and Professor Sambrook’.  He continued:

‘I think it is accepted by all of the doctors that there was pre-existing kyphoscoliosis and I think it is a question as to whether there’s been any aggravation in the sense of that being made permanently worse and there’s an issue about whether there are compression fractures in the thoracic spine and if they are whether they are part of the condition caused by this activity during this period back in the early 60s.’

8                     A discussion then ensued as follows:

‘MS HUNT: When you said, aggravation in the sense making it worse, what definitions are you directing this to?

MR POLIN: What I think the case comes down to is that Professor Sambrook sees on the x-rays some compression fractures which he’s of the opinion were caused by this activity back in the early ‘60s. Dr McGill and Dr Maxwell say that what is seen on the x-rays is probably not a compression fracture as such and even if it was it was not caused by the activity back in the ’60s.

…

MS HUNT: I know there’s a lot of discussion at what is aggravation in connection with section 9 I think it is which really isn’t relevant here but can we compare it to that?

MR POLIN: At the end of the day I think what Professor Sambrook is saying is that the compression fractures in the thoracic spine are indeed the injury that was caused back in the period 1960 to 1966.

…

MR POLIN: I probably shouldn’t use the word, aggravation, because I think Professor Sambrook goes further than that and says that in fact there’s an injury there which is demonstrated by the compression fractures.

MS HUNT: So we won’t have to deal with the aggravation issue probably?

MR POLIN: I’m not sure exactly what Professor Sambrook is going to say when he gives evidence but from the thrust of his reports …

MR NIPPERESS: No, not aggravated.

MS HUNT: Okay, so you’re not claiming aggravation Mr Nipperess?

MR NIPPERESS: No.’

9                     The Tribunal affirmed the decision of the Commission. The reasons for decision of the Tribunal stated as follows:

‘26.      In deciding this case, we are faced with three propositions, the first is:

(a)               Mr Nipperess did not have a pre-existing curvature of the spine and as a result of minor repetitive trauma during 1960-1966, he suffered injury to his spine that resulted in spinal curvature and secondary spondylosis.

…

29.       The second proposition is:

(b)               Mr Nipperess had pre-existing kyphoscoliosis but he also suffered multiple vertebral fractures during the relevant period of service. These fractures have aggravated his underlying condition and have contributed to the severity of his current spinal problems including the spondylosis.

…

30.       The third proposition is:

(c)        Mr Nipperess has degenerative spinal disease consistent with his age on a background of pre-existing kyphoscoliosis and does not have vertebral fractures.’

10                  The Tribunal rejected the first proposition on the basis that it was not supported by any of the medical evidence. That finding is not in dispute.

11                  In respect of the second proposition, the Tribunal said:

‘This proposition was put by Professor Sambrook and depended strongly on whether we accept that Mr Nipperess does in fact have multiple vertebral fractures and that they occurred during the relevant period of service.’

12                  The Tribunal then summarised the position as follows (at [31]):

‘If we were to accept that Mr Nipperess does not have vertebral fractures, then Mr Nipperess’ case fails in that there is no evidence to support the argument that he suffered any injury during the relevant period of service. If, however, we were to accept that Mr Nipperess does now have vertebral fractures, we would have to consider whether we are reasonably satisfied that Mr Nipperess suffered such fractures during the relevant service period, notwithstanding the fact that he did not complain of any injury, suffered no symptoms and had no medical treatment for any problems with his spine either during the relevant service period or for the subsequent 18 years.’ [original emphasis]

13                  The Tribunal, noting that the evidence with respect to vertebral fractures was ‘confusing and contradictory’, found that the applicant had not suffered vertebral fractures during his period of service. In making this finding, the Tribunal did not make a finding as to whether the applicant currently had vertebral fractures; rather it decided that any such injury had not been suffered during his period of service. It said (at [35]-[36]):

‘Although the possibility of painless vertebral fracture is supported by the evidence before the Tribunal, the proposition that a fit young man suffered asymptomatic multiple vertebral fractures and remained asymptomatic for 18 years is not so supported.

It follows that we are not persuaded, on balance, that Mr Nipperess suffered vertebral injury during the relevant service period.’

THE MEDICAL EVIDENCE

14                  Before the Tribunal were medical reports of numerous doctors. The principal medical evidence was that of Professor Sambrook (for the applicant) and of Drs McGill and Maxwell (for the respondent), each of whom gave oral evidence to the Tribunal. However, there was also evidence of medical opinions stretching back to 1990 from various doctors with whom the applicant had consulted (partly because of a separate claim which was made in respect of the applicant’s operational service in 1990).

The three primary MEDICAL experts

15                  Professor Sambrook contended that recent medical opinion indicated that it was possible for a person to sustain a compression fracture as a result of repetitive low-grade trauma with no associated pain or trauma occurring at the time of the fracture. He provided the Tribunal with journal articles which indicated that compression fractures had been observed in people with no history of back trauma or pain.

16                  In his report prepared for the Tribunal hearing, Professor Sambrook stated his opinion that the applicant’s x-rays showed multiple wedge compression fractures. He said that it was medically recognised that subclinical compression fractures could occur without frank pain, were quite common in males and were associated with repetitive low grade trauma. Professor Sambrook’s opinion was that, given the lack of other injury to the spine, the applicant’s compression fractures were likely to have been caused by the multiple hard landings involved in his roping and climbing activities during his period of service. The Tribunal questioned Professor Sambrook about later consequences of a subclinical fracture and the following exchange occurred:

‘ … they do get symptoms and there’s some good research, I’m afraid showing that they actually have poor quality of life, less mobility and more episodes of back pain in time, but when they are first recognised they’re asymptomatic …

So the asymptomatic nature is at the time a presumed injury? – When they’re X-rayed and a fracture is seen and there is no history of trauma or acute back pain they’re classed as asymptomatic …

Is there evidence available over what time frame they actually them [sic] become symptomatic? – No. The studies have really been cross-sectional but if you look at people, well, there’s about three year data, I think, actually, but they’re not 10 year data or longer which is probably what you’re after.’

17                  Dr Maxwell considered that the x-rays did not reveal compression fractures in the applicant’s spine, but rather showed the normal wedging associated with his kyphoscoliosis. His supplementary report stated that to sustain a compression fracture in a young man required a considerable force and that ‘in a young man the amount of force required to compress the vertebral body is likely to be much greater than that experienced by Mr Nipperess in descending on a rope and jumping off the cliff face’. Dr Maxwell said that the literature did not support the proposition that subclinical fractures without pain occur in young people without osteoporosis. Since there was no history of back pain during service, Dr Maxwell considered that the applicant did not sustain any compression fractures.

18                  Dr McGill stated in his report that he could not identify any definite vertebral fracture on the x-rays available to him, but noted that the x-rays were limited. However, he was of the opinion that even if fractures did exist, they were very likely to have occurred subsequent to the onset of the applicant’s symptoms in 1984. He considered it ‘implausible to suggest that he suffered fractures of his spine as a result of his military activities but experienced no symptom as a result at that time’. In a supplementary report, Dr McGill said that a man in his twenties without osteoporosis could not have suffered vertebral fractures without being aware of any symptom at the time. Dr McGill pointed out that the studies relied upon by Professor Sambrook related to subject groups significantly older (primarily 50 and older) than the applicant was at the time of his period of service.

The additional medical evidence

19                  The question whether the applicant had suffered compression fractures, or had suffered aggravation of his condition as a result of his activities during his period of service, was considered in the reports of several other medical professionals. On 19 December 1988, Dr Van Rooijen examined the applicant for the Department of Veterans’ Affairs in relation to an earlier claim made by the applicant for compensation. That report does not specifically consider the relationship between the climbing and roping activities and the applicant’s condition, noting that the applicant’s ‘contention [that his condition was caused by his employment] relates only to the non-eligible period’. I note the period of service being considered in the earlier claim was only the applicant’s period of operational service in Vietnam, and did not include the period as a roping and climbing instructor which occurred before this time. 

20                  Dr Gerber, radiologist, took x-rays of the applicant’s spine on 23 January 1989 which were subsequently reviewed by various medical professionals. Dr Gerber’s report made reference to wedging but not to compression fractures.

21                  On 3 February 1989, the applicant was examined by Dr Walter, orthopaedic surgeon, apparently at the request of the Department of Veterans’ Affairs. Dr Walter’s report noted:

‘Diagnosis:      Marked thoracic spondylosis secondary to his kyphoscoliosis but possibly exacerbated by his activities during the war.’

22                  On 23 August 1989, the applicant was examined by Dr Bull. Dr Bull’s report stated:

‘I consider that the kyphoscoliosis in itself has been the dominant cause plus the effect of normal wear and tear. Any effect from roping and climbing is a possible exacerbating factor but certainly not a major factor; in fact this was performed only before going to Vietnam in Oct ’66 & in Vietnam (till June ’67) his duties were not physically demanding and he was not required to rope or climb as platoon commander.’

23                  Professor Sambrook examined the applicant on 28 February 1990. He reviewed x-rays at that time but did not identify any compression fractures. (In his more recent evidence, he stated that in 1990 he would have been unlikely to diagnose compression fractures without a history of back trauma, because the body of medical opinion relating to subclinical compression fractures developed after this time.) However, his 1990 report states:

‘It is clear from the history and X-rays that the spondylitis is secondary to the kyphoscoliosis which most probably pre-dates his army service. However it is also clear that with the pre-existing condition, the repetitive activity of roping and climbing he describes could have placed further stress on the scoliosis and it is reasonable to suppose it may have aggravated or exacerbated his scoliosis later in life.’

24                  The applicant was referred to Dr Gerber for further x-rays of his spine on 13 March 1990. The report by Dr Gerber on this occasion noted partial compression and wedge shaped deformities, but did not identify any fractures.

25                   A report by Dr Mahony on 21 March 1990 which reviewed Dr Gerber’s 1990 x-rays stated that there was ‘no evidence of recent fracture collapse, which would be longstanding if present’. The report added:

‘He gave no history of any specific injury to his back apart from sustaining rope burns, however there is evidence of compression lesions of the thoraco-lumbar area which I consider to be post traumatic.

Such compression lesions could have been associated with compression of the lumbo-sacral spine and under these circumstances if the activities as a climbing instructor involved recurrent compression of the spine, such lesions could be specifically related to this type of action.’

26                  Dr Millar examined the applicant on 27 March 1990 and diagnosed him with Scheuerman’s disease (a diagnosis which was disagreed with by Professor Sambrook, Dr Maxwell and Dr McGill). Dr Millar noted that x-rays showed gross degenerative changes in the applicant’s spine and minor collapse of one vertebra. The report stated:

‘The probability is that his degenerative changes have arisen as a result of the kyphosis, excess stress being placed on his vertebral column and this would be consistent with roping as the rest of his life has been free of trauma. The degree of degenerative change is considerable and much more than one would expect from a Scheuermann’s disease. All traumatic incidents that he has suffered would contribute towards the development of a degenerative state.’

27                  Dr Ness examined the applicant on 28 March 1990 and reviewed the x-rays taken by Dr Gerber in 1989. Dr Ness does not identify any fractures in the spine, although his report states:

‘The picture is one of wear and tear on old developmental problems almost certainly dating back to adolescence and I would think it very likely that the problem was aggravated to an appreciable extent by his activities as a climber.’

28                  Dr Cameron examined the applicant on 11 January 1991 at the request of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees, which was then considering the applicant’s claim. Dr Cameron reviewed the x-rays taken by Dr Gerber and did not identify any fractures in the applicant’s spine. His report stated:

‘In the absence of any history of back injury during his CMF service I must conclude that Mr Nipperess’ current symptoms are due to the natural progression of a pre-existing spinal condition, not apparently aggravated by the Army service.’

29                  X-rays were also taken of the applicant’s spine by Dr Faulder, radiologist, on 13 April 2000. His report, provided to Professor Sambrook, stated:

‘On the lateral film there is evidence of crush fractures of T5, 6 and 7 …

… There appears to be a vertebral crush fracture of L1.’

30                  On 24 March 2004, at the request of the Military Compensation and Rehabilitation Service, the applicant was examined by Dr Billett. Dr Billett considered x-rays of the applicant’s spine undertaken in 2000, and reviewed the x-ray reports from Dr Gerber’s x-rays of 1989 and further x-rays undertaken in 1990. His report noted that there was marked degeneration in his spine, but said:

‘These changes did not occur as a result of the cliff work in 1960.

In order to have these changes, this would have to involve fractures or dislocations, which did not occur. The changes noted in the cervical, thoracic and lumbar spine are pre-existing and degenerative in nature.

I could not allot these changes to the cliff descents of the 1960s.’

31                  On 23 December 2004, the applicant was examined by Dr Jones. Dr Jones reviewed an x-ray taken in 2000 and identified a compression fracture. She took a further x-ray of the applicant’s spine on which she identified three compression fractures.

32                  On 29 March 2005, the applicant was examined by Dr Garrick. That report notes that the applicant ‘has an ongoing compensation claim with the Veteran’s Affairs Department in relation to his crush fractures and severe spondylosis; it is hard to identify an alternative aggravating the fact of his combined problems than the multiple hard falls and bumps he received as an army instructor’.

SUBMISSIONS

33                  The further amended supplementary notice of appeal relied upon by the applicant identifies the questions of law raised on the appeal as follows:

‘Whether the tribunal … erred in law in:-

1.                  Failing to consider all of the evidence before it.

2.                  Misconceiving the medical evidence of Professor Sambrook when finding that there was no evidence to support the proposition that a fit young man suffered asymptomatic vertebral fractures and remained asymptomatic for 18 years when the evidence of Professor Sambrook did support that proposition.

3.                  Misdirecting itself when finding that there was no evidence to support the proposition that a fit young man suffered asymptomatic vertebral fractures and remained asymptomatic for 18 years.

4.                  Failing to consider all of the evidence misdirected [sic] itself when confining itself to determining an answer to the question of “whether a fit young man suffered asymptomatic multiple vertebral fractures and remained asymptomatic for 18 years was supported by the evidence”.

5.                  Failing to consider all of the evidence misdirected [sic] itself when confining itself to determining an answer to the proposition at P342 “if we were to accept that Mr Nipperess does not have vertebral fractures then Mr Nipperess’ case fails in that there is no evidence to support the argument that he suffered any injury during the relevant period of service”.’

34                  The applicant challenged the finding of the Tribunal that there was no evidence to support the proposition that a subclinical compression fracture could have occurred during his period of service and remained dormant for 18 years. The applicant submits that there was evidence from Professor Sambrook to that effect and that although Professor Sambrook conceded that the studies which he tendered did not conclusively establish that subclinical compression fractures occurred in non-osteoporitic young men, the studies left open that possibility.

35                  The applicant also submits that the Tribunal failed to take into account all of the medical evidence available to it and confined its deliberations to alternative propositions which it posed for itself. In particular, the applicant says that the Tribunal failed to consider the possibility that, even in the absence of compression fractures, the applicant’s existing back injury had been aggravated by his roping and climbing activities, despite the fact that there was medical evidence which may have supported such a finding.

36                  In relation to this submission, the respondent submits that the Tribunal was not required to consider expressly every matter raised by the applicant: see Minister for Health v Charvid Pty Ltd (1986) 10 ALD 124. Further, the respondent says that the applicant expressly disavowed reliance upon the ground of aggravation before the Tribunal (see the portion of the transcript set out at [8] above), and that accordingly he was not entitled to raise it on appeal, and relies upon Coulton and Ors  v Holcombe and Ors (1986) 162 CLR 1 at 7-8.

37                  The applicant responds that in view of the fact that he was unrepresented, it was unfair of the Tribunal to ask him whether he was claiming aggravation. That issue was essentially a medico-legal issue and the applicant, who had neither medical nor legal training, may have been unaware of the legal implications of his answer. The applicant points to the fact that the claim of aggravation had been before the original decision-maker, and that under s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal has the power to inform itself as it thinks appropriate. The applicant says that, if the Tribunal confined itself because of the applicant’s answer to this question, the Tribunal failed to afford procedural fairness to the applicant, and relies upon Sullivan v Department of Transport (1978) 20 ALR 323 at 342-3 per Deane J.

38                  The applicant says that the Tribunal should have considered the totality of the medical evidence and consider whether it suggested that the applicant had suffered an ‘injury’ within the meaning of the SRC Act. The applicant submits that because of the comments in relation to ‘aggravation’ at the beginning of the hearing, the Tribunal failed to carry out its review of the material before it, and relies upon Mifsud v Campbell (1991) 21 NSWLR 725.

39                  The respondent rejects the submission that the Tribunal ‘manoeuvred’ the applicant into a disadvantageous position. The respondent says that the applicant at no time requested assistance or guidance, and does not make any complaint that he was prevented from presenting his claim in the manner in which he intended. The Tribunal was merely refraining from interfering in the applicant’s case: see Sullivan at 342-3. The respondent says that it was not incumbent upon the Tribunal to frame the applicant’s claim on his behalf, and to have done so would have contravened the impartiality and neutrality which are vital to fairness between the parties: see Rajski and Anor v Scitec Corporation Pty Ltd (unreported, Court of Appeal of New South Wales, 16 June 1986).

40                  The respondent submits that the applicant is intelligent and was competent in the presentation of his claim before the Tribunal, which are factors to be taken into consideration by the Tribunal and the Court: see Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438.

findings

41                  The further amended supplementary notice of appeal contains five questions of law to be determined by this appeal (see at [33] above). However, I consider that in fact the appeal raises two real issues. The first issue, which corresponds to the second and third question of law, relates to whether the Tribunal erred in determining that the appellant could not have suffered a subclinical compression fracture during his period of army service.

42                  The second issue, which corresponds to the first, fourth and fifth question of law, relates to the question whether the Tribunal considered the totality of the evidence, and in particular, whether the Tribunal erred by confining itself to propositions (a), (b) and (c) (reproduced at [9] above). Related to this issue is the submission that the Tribunal unjustifiably narrowed the scope of its inquiry because of the conversation with the applicant at the outset of the hearing.

did the tribunal err in determining a compression fracture could not have occurred during the period of service?

43                  The three medical experts who gave evidence at the Tribunal hearing disagreed whether it was possible for the applicant to have suffered a subclinical vertebral fracture during his period of service. I have summarised the evidence of each expert at [15]-[18] above.

44                  The Tribunal made findings as follows (at [33]-[35]):

‘We are satisfied that recent medical literature does support the proposition that, in population based radiographic surveys, patients who do not have osteoporosis are frequently identified with vertebral fractures and that, at the time of the surveys, these patients report having no back pain. What is not so clear is whether the patients remain pain free and for how long.

Professor Sambrook, in evidence, indicated that these patients do get symptoms and have “poor quality of life, less mobility and more episodes of back pain in time”, but he was unable to provide a clear perspective as to the span of time. He indicated that studies have been cross-sectional with some data over three years but there is no real data for longer periods.

In his written submission, Dr McGill points to a suggestion by the author of one of the papers before us that painless vertebral fraction [sic] is, in fact, uncommon:

“Furthermore, back pain of mild to moderate severity may not be reported if it seems insignificant in comparison to co-morbid conditions or traumatic life experiences. Of course, it is also possible that some vertebral fractures truly are not associated with pain.” (emphasis added) [sic]

Although the possibility of painless vertebral fracture is supported by the evidence before the Tribunal, the proposition that a fit young man suffered asymptomatic multiple vertebral fractures and remained asymptomatic for 18 years is not so supported.’

45                  I do not consider, as suggested by the applicant, that this passage demonstrates the Tribunal found that there was ‘no evidence’ to support his claim to have remained asymptomatic for 18 years. This is not what the Tribunal’s reasons say, nor is it consistent with its summary of the evidence preceding the finding. In the above passage the Tribunal correctly summarised (and indeed accepted) the evidence of Professor Sambrook in relation to the possibility of a subclinical fracture occurring. The Tribunal also clearly recognised the possibility that such a fracture could remain asymptomatic for some time after its occurrence.

46                  However, in applying the evidence to the facts of the applicant’s case, specifically, that he was a young man at the time when the fractures were alleged to have occurred, that multiple fractures were alleged, and that he had not suffered symptoms until 18 years after the period of service relied upon, the Tribunal did not accept, on balance, that the evidence supported his claim. There was evidence from both Dr McGill and Dr Maxwell which supported the Tribunal’s finding. It was a factual finding which was reasonably open to the Tribunal, and therefore cannot properly be the subject of challenge in this Court. Accordingly, this ground must fail.

Did the tribunal fail to consider all the evidence?

47                  Upon the evidence before it, the Tribunal was entitled to conclude that the applicant had not suffered vertebral fractures during the course of his employment. However, the applicant submits that the Tribunal also failed to consider whether the applicant’s degenerative spinal condition could have been aggravated without the applicant suffering a compression fracture.

48                  It is clear from the Tribunal’s reasons that it did not consider the possibility that the applicant could have suffered an aggravation of his spondylosis as a result of his roping and climbing activities without having suffered a compression fracture of his spine. This is apparent from the formulation by the Tribunal of the three propositions to be considered in the case, none of which addresses this scenario. It also specifically arises from the statement by the Tribunal:

‘If we were to accept that Mr Nipperess does not have vertebral fractures, then Mr Nipperess’ case fails in that there is no evidence to support the argument that he suffered any injury during the relevant period of service.’ [original emphasis]

49                  The question, therefore, is whether the failure to consider this issue constituted a failure to consider the whole of the applicant’s case. In Commissioner of Taxation (Cth) v Cainero (1988) 15 ALD 368, Foster J said (at 370):

‘It could not be suggested that the Tribunal was under any obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them. It is obviously sufficient, in light of the cases referred to above, and as a matter of common sense, that a sufficient compliance with the requirement of considering all issues of fact and giving adequate reasons occurs when the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored.’

50                  In Riordan v Australian Sports Drug Agency (2002) 120 FCR 424, Gray J said at [50]:

‘The extent to which the Tribunal is obliged to be proactive is a difficult question.  It is possible to have considerable sympathy with the proposition that the Tribunal is obliged only to determine the issues placed before it by the parties.  It must be recognised, however, that at least in some circumstances, the Tribunal is obliged to look at issues that are not raised directly.  It can only do so, however, if those issues are apparent on the material before it.’

51                  It is a well-recognised principle that a tribunal (or a court) has a particular duty towards unrepresented applicants who appear before it. The High Court in Neil v Nott (1994) 68 ALJR 509 observed at 510 that:

‘A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.’

52                  The issue of assistance to be provided to unrepresented litigants was further considered by the Full Federal Court in Minogue v Human Rights and Equal Opportunity Commission. The Court there observed (at [27]):

‘In Abram v Bank of New Zealand [1996] ATPR 42340 at 42347, a Full Federal Court, faced with an unrepresented litigant’s claim that the trial judge had not given him appropriate assistance to present his case, made this comment:

“What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.”

We respectfully agree with this observation. Because the duty of the judge varies according to the factors identified by the Full Court in Abram, the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented …’

53                  The Full Court in Minogue then referred to the decision of Rajski, in whichMahoney JA observed (at 22-3 of his Honour’s reasons):

‘Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.’

54                  I note also the observations of Samuels JA in Rajski with respect to the limits upon the assistance that a court or tribunal should provide to an unrepresented litigant. His Honour observed (at 6 of his Honour’s reasons):

‘In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.’

55                  I have set out above the medical evidence which was before the Tribunal at the time it made its decision. Much of that evidence relates to whether the applicant exhibited vertebral fractures. However, several medical experts linked the applicant’s degenerative spinal change to his roping and climbing activities without specifically identifying vertebral fractures: see the reports of Dr Bull, Dr Millar, Dr Ness and Dr Garrick and the 1990 report of Professor Sambrook. The reports of Dr Cameron and Dr Billett, as well as the evidence of Dr Maxwell and Dr McGill, contradict the claim that the applicant’s spondylosis was aggravated by his activities.

56                  Some of the reports which formed part of the applicant’s medical history raised the possibility that his spinal degeneration could be exacerbated without him having suffered a fracture. However, the evidence relating to this possibility was scant and derived from various medical reports which were part of the background to the applicant’s claim, rather than the main portion of his medical evidence. Many of those reports were brief reports which were many years old. Despite the fact that the existence of compression fractures was clearly in dispute, none of the recent evidence of Professor Sambrook suggested that the applicant could have suffered an aggravation of his spondylosis even if the fractures did not exist. Further, the respondent’s medical experts gave evidence that the applicant’s condition was the result of normal degeneration, which is inconsistent with the position now pressed by the applicant. In these circumstances, the references in his medical reports mentioned above would have been insufficient, without further evidence, for the Tribunal to have made a finding that the applicant’s spondylosis had been aggravated by his service without him having suffered a compression fracture.

57                  In these circumstances, and even having taken into account the fact that the applicant was unrepresented, I consider that the evidence was insufficient to raise this question as a real issue in the proceedings. In coming to this conclusion, I bear in mind the observations of Woodward J in Charvid, where his Honour said (at 129):

‘Counsel relied … on s 43 of the Administrative Appeals Tribunal Act 1975, which requires the Tribunal to give reasons for its decision, which, if in writing, “shall include its findings on material questions of fact and a reference to the evidence … on which those findings were based”. Arising from this requirement, it is to be assumed that any matters not dealt with in the Tribunal’s reasons must have been found to be not material to its decision: Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 353. There could, however, be two reasons for a matter raised in the hearing not being dealt with in the decision. It could be that the Tribunal took the view that, whatever the state of the evidence, the matter was not important or “material” to the issues which it had to determine; or it could be that, although the matter was potentially important, the evidence on it was so skimpy or uncertain that no useful conclusion could be drawn. The Tribunal need not attempt, in its reasons, to deal with every matter which has been covered by evidence before it, or even every matter dealt with in counsel’s arguments. The requirement of s 43 is, in my view, that the Tribunal should deal with all the matters which it is bound by relevant legislation to consider, or which it has found persuasive, or which have been urged upon it and would have been persuasive had they been established by the evidence: Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620 at 621.’

58                  If it had been established on the evidence that the applicant’s spondylosis had been aggravated despite his not suffering a compression fracture, this would have been material to the Tribunal’s decision. However, not only was this not urged upon the Tribunal, but the evidence relating to this issue was so skimpy and uncertain that no useful conclusion could be drawn from it. The only mention of this issue was brief references in dated medical reports, and no reports prepared for the hearing supported, or even mentioned, any claim on this basis.

59                  Certainly, if it had been squarely raised as a material issue by the evidence (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 at [58]), the Tribunal would have been required to consider whether the applicant had suffered an aggravation without suffering a fracture even if the applicant had not raised the issue. However, as outlined above, there was no recent or detailed medical opinion which supported the claim which the applicant now seeks to make. Brief references in dated medical reports were not sufficient to determine the issue in his favour. In these circumstances, the fact that the applicant was unrepresented was not enough to oblige the Tribunal to investigate the issue further.

60                  I note the applicant’s submission that the Tribunal improperly confined itself as a result of its question to the applicant at the outset of the hearing. I agree that, in the circumstances, if the Tribunal had in fact improperly confined itself, it would have been unfair of the Tribunal to rely upon the applicant’s statement that he was not claiming aggravation to restrict its consideration of the issues. The applicant’s statement was made in response to a question from the Tribunal. That question effectively asked the applicant to confine his claim, when there would have been no apparent advantage to him (and, in fact, a distinct disadvantage) in doing so. There was no indication from the transcript that the applicant understood the significance of the statement he was making, or that he could make submissions in the alternative. Without intending any criticism, I note that there is no suggestion in the transcript that this possibility was explained to him by the Tribunal or by counsel for the respondent. When an applicant is unrepresented, I do not consider that a Tribunal should exclude from its consideration a matter which is raised as a material issue by the evidence because an unrepresented party has agreed to do so, unless it is clear that the unrepresented party understands the implications of confining his or her claim.

61                  However, as referred to above, I do not consider that the Tribunal failed to consider any material issue. The claim now pressed by the applicant was not a material issue before the Tribunal. Whilst it may have been possible for the applicant to have made a claim of the nature which he is now suggesting, it was not a claim which he made to the Tribunal, nor was it raised as a material issue by the evidence before the Tribunal.  Accordingly, this ground of appeal must also fail.

Conclusion

62                  It follows that I consider the application must be dismissed and in the circumstances, the usual order for costs should apply.

Associate:

Dated:              26 July 2006