FEDERAL COURT OF AUSTRALIA
Kowalski v Military Rehabilitation and Compensation Commission
[2010] FCA 408
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Citation: |
Kowalski v Military Rehabilitation and Compensation Commission [2010] FCA 408 |
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Appeal from: |
Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 382 |
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Parties: |
KAZIMIR KOWALSKI v MILITARY REHABILITATION AND COMPENSATION COMMISSION |
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File number: |
SAD 75 of 2009 |
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Judge: |
MANSFIELD J |
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Date of judgment: |
30 April 2010 |
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Catchwords: |
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Legislation: |
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 7(4) and 124 Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 29 Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 38, 39 and 44 Veterans’ Entitlements Act 1986 (Cth)
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Cases cited: |
Waterford v The Commonwealth of Australia (1987) 163 CLR 54 cited TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited Kowalski v Repatriation Commission [2008] AATA 903 discussed Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 cited Donnelly v Repatriation Commission (1987) 73 ALR 350 cited 3D Scaffolding Pty Limited v Commissioner of Taxation [2008] FCA 1477 cited Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited Johnson v Johnson (2000) 201 CLR 488 cited Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 discussed Comcare v Sahu-Khan [2007] FCA 15 discussed Lees v Repatriation Commission [2002] FCAFC 398 cited |
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Date of hearing: |
15 December 2009 |
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Place: |
Adelaide |
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Division: |
GENERAL DIVISION |
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Category: |
Catchwords |
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Number of paragraphs: |
61 |
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Counsel for the Appellant: |
The appellant appeared in person |
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Counsel for the Respondent: |
JR Wallace |
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Solicitor for the Respondent: |
Sparke Helmore |
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
SAD 75 of 2009 |
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
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KAZIMIR KOWALSKI Appellant
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AND: |
MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent
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JUDGE: |
MANSFIELD J |
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DATE OF ORDER: |
30 APRIL 2010 |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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GENERAL DIVISION |
SAD 75 of 2009 |
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ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL |
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BETWEEN: |
KAZIMIR KOWALSKI Appellant
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AND: |
MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent
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JUDGE: |
MANSFIELD J |
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DATE: |
30 APRIL 2010 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
REASONS FOR JUDGMENT
1 This appeal is from a decision of the Administrative Appeals Tribunal (the Tribunal) made on 27 May 2009: Kowalski v Military Rehabilitation and Compensation Commission [2009] AATA 382.
2 The Tribunal affirmed a decision of the Military Rehabilitation and Compensation Commission (the Commission), which rejected a claim by the appellant for compensation arising from a condition of gastro-oesophageal reflux disease (GORD), which the appellant said was caused, or contributed to, by his service in the Australian Army.
BACKGROUND
3 The appellant served with the Army between 20 April 1972 and 19 October 1973. He commenced service as a soldier on 20 April 1972. After undergoing his basic training for three months, he then served as a regimental and mechanical draftsman. He did not serve outside Australia.
4 The appellant has a prior accepted claim for compensation for a duodenal ulcer, which occurred during the period of his Army service.
5 The Tribunal noted that the appellant was employed by Mitsubishi Motors Australia Ltd following his Army service; that he suffered a recurrence of his ulcer in 1979 and 1981, and again received compensation from the Commission in respect of the consequential incapacity and expenses; that he suffered a back injury in 1989 in his subsequent employment, and that he also suffered what he called a mental breakdown in 1991 during that employment. He has not worked since 1991. The Tribunal also noted that his further medical history included a heart attack requiring coronary bypass surgery in 1997.
6 The appellant also has an extensive history of symptoms of a burning sensation in his throat, heartburn, regurgitation, and similar gastric symptoms reported at least from about 1992.
7 It is now accepted that the appellant suffers from GORD. He claimed before the Tribunal that his Army service caused or contributed to his GORD because he developed GORD during his service in the Army, and has suffered from it since, or alternatively that he developed GORD after his service in the Army but as a result of , or contributed to by, four possible factors attributable to his Army service:
(1) the stressful time he had experienced while working as a national serviceman;
(2) the prescription of smooth muscle relaxants for treatment of his duodenal ulcer;
(3) being put on a high fat, high cholesterol diet by an Army doctor treating his ulcer, which caused a significant weight increase; and
(4) drinking alcohol to excess during his Army service.
THE LEGISLATION
8 The Tribunal said that, by reason of the date that the appellant was found to have first sought treatment for GORD so that, pursuant to s 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), the SRC Act is the applicable legislation. Under s 14(1), the Commonwealth is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment.
9 “Injury” was defined in s 4(1) of the SRC Act (prior to amendments in 2007 which, it was common ground, do not apply) in the following terms:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
10 “Disease” was also defined in s 4(1) of the SRC Act, as it then stood, in the following terms:
disease means:
(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 or a licensed corporation.
THE TRIBUNAL’S REASONS
11 After reciting the “background facts” including the appellant’s personal and medical history, his evidence and the medical evidence, the Tribunal’s conclusions are set out in two sections of its reasons headed “Consideration of the Evidence” and “Application of the Law”. Although it initially identified the issues it had to address as including whether the appellant suffers GORD, the Tribunal did not make an express finding on that topic. It is clear enough, however, that it accepted that he did so. Its reasons focus on whether his Army employment contributed in a material degree to the onset or aggravation of that disease. It was necessary to address that question, having determined that his claim in respect of GORD was to be determined under the SRC Act, because, if it was a compensable injury, it was clearly only because it would have been a compensable disease as defined. That required the causative connection contained within the definition of “disease” referred to above.
12 The Tribunal found that the appellant was not at all times reliable in his evidence. It was of the view that aspects of his evidence appeared to be constructed to fit the medical opinion as to the causation of GORD.
13 In relation to the asserted Army-service related causes or contributing causes, to the appellant’s GORD, as set out in [7] above, the Tribunal:
· found that the appellant had not been recommended a high fat, high cholesterol diet by any Army doctor treating his ulcer, and also found that the appellant’s significant weight gain occurred during the 1990s, as he is recorded as having told Dr David Hetzel in 1998 that he weighted 73 kgs until 1994 and then 97 kgs by the time of his heart attack, many years after his Army service, so there was no link between his weight gain and his Army service;
· did not accept that the appellant consumed alcohol to excess during his Army service.
That left his claims that he had developed GORD at least in part as a result of stress during his Army service, or as a result of the prescription of smooth muscle relaxants for his duodenal ulcer both during and subsequent to his Army service.
14 The Tribunal accepted the evidence of the two medical specialists who gave evidence, Dr Reid and Dr Hetzel.
15 As to the claim of Army-service related stress contributing to a material degree to his GORD, the Tribunal found on the basis of the medical evidence that the GORD developed much later, about the time that (it found) he first sought treatment for GORD in the 1990s. The Tribunal considered on the basis of the medical evidence of Dr Reid and Dr Hetzel that the appellant’s GORD was possibly due to the combination of his obesity, his ingestion of anti-inflammatory medication for his back problem and his ingestion of Aspirin for his heart problem. Both doctors carefully reviewed the Army medical records and his subsequent medical records. Those records indicated that he had an ulcer at the time, but those doctors said that he had not had GORD during his Army service. As a result the Tribunal found that the appellant did not suffer from GORD during his Army service but was suffering the effects of a duodenal ulcer.
16 With respect to the claim that smooth muscle relaxants prescribed to treat the ulcer were causative of the GORD, the Tribunal, having found that the appellant did not suffer from GORD during his Army service, but the effects of a duodenal ulcer, continued:
[88] With respect to the smooth muscle relaxants, namely Merbentyl and Librax, both Dr Reid and Dr Hetzel said that there is no established link between taking these drugs and GORD. They commented that the taking of these drugs may cause some regurgitation on a short-term basis, but when one ceases taking the drugs the reflux would cease fairly quickly.
[89] The Tribunal finds, on the balance of probabilities, that there is no link between Mr Kowalski’s GORD and the medication that he was prescribed for treatment of anxiety or ulcer during his Army service.
After it had rejected the four hypotheses about why the GORD was a compensable “disease” as defined by the SRC Act, in the penultimate paragraph of its reasons the Tribunal then said:
[93] In the circumstances, the Tribunal cannot be satisfied, on the balance of probabilities, that there is the required strong causal link between Mr Kowalski’s Army service and the onset of the condition of GORD.
THE GROUNDS OF APPEAL
17 The notice of appeal is unhelpful. It identifies 23 asserted errors of law, and six grounds of appeal, but they are to a degree repetitious. In part they are clearly unfounded and inappropriately expressed in the light of the submissions and the material to which the Court’s attention was drawn on this appeal. It is not necessary to address each of them in turn. Each of them has been carefully considered.
18 To the extent that the Notice of Appeal refers to grounds of appeal or errors of law to the effect that the Tribunal “deliberately and consciously perverted the course of justice”, or makes similar such claims including that of actual bias, those claims are rejected. There is simply no material from which those assertions can be made out. They are not made out by the appellant’s dissatisfaction with the outcome of the Tribunal’s review, or because the appellant disagrees with aspects of the Tribunal’s reasons, or because he considers that it may have erred in its factual findings or its understanding of, or application of, the law.
19 There are several issues which appear to emerge, upon careful consideration of the appellant’s grounds of appeal and his submissions in writing and orally. They are:
(1) whether the Tribunal erred in determining that the SRC Act, and not its legislative ancestor, the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) should have been applied in determining his claim for compensation for his GORD;
(2) whether the Tribunal erred in law in a series of findings which the appellant said were incorrect:
(i) that in 1979 and 1981 the appellant suffered a recurrence of ulcer symptoms and had several days off work as a result, when he says that his ulcer condition persisted with varying degrees of intensity subsequent to his Army service;
(ii) that the appellant’s weight at 1994 (as noted by Dr Hetzel) was 73 kgs, when he said that his weight progressively increased from the time of his Army service to 97 kgs at the time of his heart attack;
(iii) that the appellant had constructed his claims to have been put on a high fat, high cholesterol diet when in the Army to fit his understanding of the aetiology of GORD, and so in rejecting his claim that there was a link between his weight gain and his Army service, when (the appellant asserted) the Tribunal had already had a finding in his favour confirming that he had been put on such a diet during his Army service;
(iv) that the appellant first sought treatment for GORD at the earliest in the mid-1990s, when the appellant said that he had suffered from heartburn during and subsequent to his Army service and was treated for heartburn, and that the heartburn was a symptom of GORD and not merely a symptom of his ulcer;
(v) that the Army medical records were suggestive only of an ulcer, despite the use of the word “heartburn” in those records;
(vi) that the appellant did not suffer GORD during his Army service [a generic encapsulation of points (iv) and (v)]; and
(vii) that there was no link between his GORD and the medication prescribed for anxiety and for the ulcer during his Army service, when the appellant said that the evidence was plainly to the contrary;
(3) whether the Tribunal erred in not according the appellant procedural fairness because it inappropriately assisted the Commission to present its case and did not conduct its hearing in an inquisitorial way; and
(4) assuming that it was correct for the Tribunal to assess his claim by reference to the causative connection required by the definition of “disease” in the SRC Act, the Tribunal erred in deciding that his GORD was not related to his Army service because it asked the wrong question, namely whether there was a “strong causal link” between his Army service and the onset of the condition of GORD rather than asking whether there was a contribution in a material degree by his Army service to the onset or aggravation of his GORD. That is based upon the expression of the Tribunal in [93] of its reasons set out in [16] above.
It will be necessary to determine the extent to which, if at all, the matters raised in (2) above amount to an appeal on a matter of law, that being the limited recourse the appellant has to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
20 The Commission acknowledged that the matters in (1) and, with some qualification, in (3) may give rise to a question of law. The qualification is that it is first necessary to determine, as a matter of law whether the Tribunal was obliged to accord the appellant procedural fairness in conducting its review, before deciding if, in fact, procedural fairness was accorded to him. The matters in (2) may, as the respondent submitted, simply involve the appellant asserting that the Tribunal decided a particular fact or facts incorrectly, and may involve no question of law. It will be necessary to consider his arguments in relation to those matters to decide if they extend to demonstrating an arguable, and ultimately correctly arguable, matter of law.
21 As to (4), the Commission submitted that the matter was not raised in the notice of appeal or grounds of appeal and so the appellant should not be allowed to raise the point. In my view, it is appropriate in all the circumstances to permit him to raise it, as he did in the course of oral submissions. In the first place, the Notice of Appeal specifically draws attention to that paragraph in the Tribunal’s reasons which (he says) demonstrates error, albeit probably error of a slightly different kind, as well as error in not applying the 1971 Act. More importantly, when the matter was raised more explicitly in the course of the hearing, counsel for the Commission acknowledged that the contention required a proper understanding of the Tribunal’s reasons, and would not have led the Commission to have required other material to be before the Court, and because it was able to present its argument on the point.
CONSIDERATION
Issue 1
22 The appellant argues that the decision as to his entitlement to compensation for GORD should have been considered under the 1971 Act and not under the SRC Act. Under the 1971 Act, he would have been eligible for compensation if his employment in the Army was a “contributing factor” to the contraction or aggravation of the disease of GORD, rather than the more onerous connective test of it having contributed to his GORD “in a material degree”.
23 Section 7(4) of the SRC Act provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
24 The Tribunal, correctly in my view, said that it was necessary to determine whether the appellant suffered GORD or an aggravation of GORD prior to the commencement of the SRC Act, or subsequent to its commencement on 1 December 1998. However, its reasons at [3] might be seen to be wrong when it said that it was common ground that the appellant was not treated for or diagnosed with GORD until after the SRC Act came into force. The appellant forcefully says that was incorrect. However, in context, that is not a finding which is incorrect. The Tribunal clearly was aware that, in terms of s 7(4) of the SRC Act, it had to decide when the appellant first sought medical treatment for GORD, or when his GORD first resulted in incapacity for work. It recognised his claim that his “heartburn” as recorded in his medical notes during his Army service, and for which he received treatment, was treatment for GORD so (in terms of s 7(4) of the SRC Act) he would be taken to have suffered GORD at that time. That is not the test which applied under the 1971 Act. In my view, that sentence in the Tribunal’s reasons is an unfortunate expression, reflecting the Tribunal’s need to decide which of the 1971 Act and the SRC Act were to apply. The factual inquiry necessary to decide that question was undertaken by the Tribunal.
25 If the appellant suffered GORD from the time of his Army service, as he claims, s 124(1) of the SRC Act then provides that the SRC Act applies in relation to an injury (including by the definition of “injury” a disease) suffered before its commencement, and s 124(1A) provides that the appellant would be entitled to compensation under the SRC Act in respect of his GORD if that condition was compensable under the 1971 Act. The amount of compensation to which the appellant would have been entitled under the SRC Act was however confined by s 124(4)(c) to the amount payable under the 1971 Act. But it was first necessary for the Tribunal to decide whether any eligibility for compensation for GORD was to be determined under the SRC Act or the 1971 Act.
26 Section 29 of the 1971 Act provided that a disease or its aggravation, acceleration or recurrence to which the employment was a contributing factor was compensable as an injury. Hence, as noted, the necessary causal connection between the disease and the employment did not include the materiality test.
27 The enquiry necessary for the Tribunal was to determine whether, during his Army service, the appellant suffered the onset of GORD (as he claimed). It was then necessary, if he did, to determine if his Army service was a contributing factor to the onset of GORD.
28 The claim that the appellant suffered GORD during his Army service was not accepted by the Tribunal. It found as a fact that he did not have the onset of GORD during that time. It regarded his heartburn at that time, for which he was treated, as a symptom of his ulcer. In context, the observation of the Tribunal at [3] of its reasons is correct because it reflects the fact that the appellant was not treated expressly for GORD by a doctor at that time, nor was he diagnosed with GORD at that time; he was treated for symptoms then attributed to his ulcer.
29 The Tribunal did, as it was required to do, consider whether in fact the symptoms of heartburn suffered during his Army service, and for which he sought medical treatment, were in fact treatment for GORD. That involved a factual inquiry.
30 The Tribunal did not accept that the reports of heartburn in the Army medical records indicated that he was then suffering symptoms of GORD. It attributed the reported heartburn to his ulcer condition. It accepted the medical evidence from Drs Reid and Hetzel on that issue. Both doctors had reviewed both the Army medical records and the subsequent medical records. They had noted reference in the Army medical records to “heartburn”. Each were of the view that, properly understood, those records indicated that the appellant had an ulcer at the time but not that he had GORD. It therefore accepted the medical advice that the appellant was not suffering from GORD during his Army service, but was suffering the effects of a duodenal ulcer.
31 On that evidence, the Tribunal found that the first onset of GORD was in the 1990s, after the commencement of the SRC Act.
32 The Tribunal has not misdirected itself in law in the way it addressed that question. It made a finding of fact in the terms required by s 7(4) and consistently with the 1971 Act. It did so upon the evidence. It is clear that the appellant strongly disagrees with that finding of fact. However, it is not the function of the Court to substitute its view on the facts for those of the Tribunal. It is to determine whether, in the process of determining the application, the Tribunal has committed an error on a matter of law. Consequently, subject to addressing the second issue (involving the appellant’s challenges to a number of findings of fact made by the Tribunal), in my view, the Tribunal properly applied the SRC Act in determining the appellant’s claim.
Issue 2
33 The documents which indicate the appellant’s challenges to findings of fact do not clearly identify how it is said that those findings of fact demonstrate error on a question of law, as required by s 44 of the AAT Act.
34 It is established that an error in fact finding on the part of the Tribunal does not of itself give to the Court power to set aside the Tribunal’s decision. In Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77, Brennan J said that there is no error of law simply in making a “wrong” finding of fact. It is not sufficient to enliven the Court’s power under s 44 to persuade the Court that, on the material before the Tribunal, the Court might or even would have reached a different finding of fact. Generally, the finding of facts by the Tribunal will not demonstrate an error of law.
35 It does not demonstrate even an arguable error on a matter of law by asserting (as the notice of appeal persistently does) that a finding of fact by the Tribunal was an error of law because it “perverted the course of justice”. Nor does it do so to assert that a finding of fact by the Tribunal was inconsistent with other material before it, which the appellant says meant that the finding of fact was not correct. It is necessary, in essence, to consider whether, in respect of each of the impugned findings of fact, there was material before the Tribunal upon which it could reasonably have made that finding. Absent other considerations (which are discussed under “Issue 3” and in one respect mentioned at the conclusion of this section of the reasons), if there was material upon which the Tribunal could reasonably have made its impugned findings of fact, it will not have committed an error on a question of law. Indeed, there is scope for debate about whether even in such a case there is error on a question of law (see eg per Gummow J in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178), but for reasons which appear below I do not need to explore any such refinements.
36 Generally, I consider that the findings of the Tribunal impugned by the appellant were based on material before it and were reasonably available to the Tribunal.
37 Taking the matters referred to in subparagraph (2) of [19] above in sequence:
(i) The particular “finding” by the Tribunal that the appellant had a recurrence of ulcer symptoms in 1979 and 1981 was part of the background facts recorded by the Tribunal, for which there was a foundation in the evidence. In addition, the Tribunal recognised earlier in its recital of the background facts that the appellant had early symptoms from his ulcer in 1976 and thereafter.
(ii) & (iii)
There was evidence that Dr Hetzel noted that the appellant’s weight in 1994 had been 74 kg.
The observation of the Tribunal that the appellant’s claim about his prescribed diet in the Army is not believable, and appeared to have been constructed to fit the medical opinion as to the cause of GORD involved rejecting the appellant’s evidence on that topic. That was a matter for the Tribunal, as a matter of judgment and impression. It is correct that in the material in evidence before the Tribunal his assertion to that effect was not made in the documents filed by him before the hearing.
The appellant referred repeatedly to some observations of a Deputy President of the Tribunal in another matter in which he was involved: Kowalski v Repatriation Commission [2008] AATA 903. Reference was made to a “finding” of the Deputy President in that matter that “the doctor at the Base also put Mr Kowalski on a high fat diet which entailed his having milk and cheeses but not spicy foods”.
That claim concerned a claim for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) for a number of conditions that were identified by the Repatriation Commission as major depression with co-morbid anxiety, hypertension and ischemic heart disease. The appellant claimed that those conditions were defence caused. It was accepted that the appellant suffered depressive disorder and anxiety disorder. Under the heading “Background” in his reasons the Deputy President commenced by saying at [7]:
The following background facts are derived partly from Mr Kowalski’s evidence, and partly from the documentary material before me, including Army records, and were not disputed.
When reciting those matters, after referring to notes of a consultation on 20 August 1973, the Deputy President recorded at [14]:
The doctor at the Base also put Mr Kowalski on a high fat diet which entailed his having milk and cheeses, but not spicy or acidic foods. He could not remember whether he had been advised to increase his overall food intake.
It does not appear from the reasons whether that was recording a piece of information provided by the appellant or recording something from the notes. Elsewhere in the reasons, when recording the contentions, reference is made to the appellant’s claim that he was advised by a doctor at the Amberley Base to go on a high fat diet after he developed the ulcer, that as a result he became obese and suffers from high cholesterol, and that he thereby developed ischemic heart disease. Under the heading “Consideration”, and dealing with the question of whether his duodenal ulcer was connected with the defence service, the Deputy President at [57] observed:
The other aspect of his treatment was that he was advised to go on a high fat diet, but there was no evidence that this was inappropriate advice judged by the state of knowledge or medical practice then adopted. On the contrary, according to Dr Thompkins, such advice was the practice in the 1970s, although it is not the present practice.
That observation did not lead to that claim being successful.
In relation to the claim for hypertension in that case, there is also substantial analysis of the evidence as to the appellant’s weight from time to time. The Deputy President found that it had changed only marginally in the period of his Army service. He also noted that, at one point on a form, the appellant was unable to say when his weight had significantly commenced to increase.
That material was not before the Tribunal as constituted on the review application giving rise to this appeal. It was not (and could not have been) put in evidence on the appeal. It simply records what was apparently, for the purposes of the background of that matter, a fact which was not put in issue. It is unclear whether it was merely an assertion by the appellant in that matter, or had some other foundation.
It is not shown that the Tribunal did not make its assessment and reach its conclusion on this aspect on that material, or that its finding was not reasonably open to it. The Tribunal did not accept that the appellant was told to go on a high fat and high cholesterol diet when in the Army. It positively found that his significant weight gain did not occur until the mid 1990s and many years after he ceased his Army service. It positively found that there is no link between his weight gain and his Army service. It noted the absence of any earlier assertion in the Statements of Facts Issues and Contentions before it on this application. On a basis which it did not specify, it accepted that the appellant would not have been put on such a diet because it would not have been recommended in the 1970s. It also referred to the evidence about the timing of his weight gain, not consistent with previous statements made by him to the doctors. It found as a fact that his weight gain was more probably incurred in line with the information he gave to Dr Hetzel in 1998, namely that it developed substantially from the early 1990s.
The Tribunal’s approach involved both primary findings of fact about what happened during his Army service and consequential findings about causation. The Tribunal rejected the factual premises for this hypothesis of connection, namely that the appellant was put on a high fat, high cholesterol diet during his Army service, and secondly that as a result he became significantly overweight. It made positive findings to the contrary. It gave reasons for those findings. The fact that, in a separate proceeding a Deputy President recorded as a background fact a matter which was contentious in the instant matter and which the Tribunal as constituted for the subject review decided adversely to the appellant for the reasons expressed, does not demonstrate that the Tribunal erred on a matter of law in reaching that conclusion.
(iv), (v) and (vi)
The Tribunal accepted the medical evidence that the appellant’s condition of GORD did not occur during his Army service. That finding of fact did not depend upon whether the causal test of a “contribution” or a “material contribution” or a “strong contribution” was applied by the Tribunal. It is a determination as to the time of onset of the condition of GORD. It involves a related question of fact, as the appellant pointed out, as to the significance of the record of “heartburn” in his Army medical records. The Tribunal made an assessment of that material. It found as a fact that he did not suffer GORD during his medical service. It needed to be satisfied of that fact before it then addressed whether his GORD, having occurred (as he alleged) during the course of his medical service was materially contributed to it by his medical service. It did not reach that point. Consequently, even if, on the issue of causation, the Tribunal misapplied the correct causal test, it did not do so in a way which could have affected its final decision.
In any event, the appellant has not persuaded me that the Tribunal, in making that finding of fact, erred on a matter of law so as to enliven the Court’s power to upset that factual finding. It is not enough for the appellant to point to evidence upon which the Tribunal may have reached a different view on that matter. The appellant vehemently sought to persuade the Court that he did suffer GORD during his Army service. He pointed to the symptoms of heartburn he suffered during that time. He pointed to the use of heartburn as a substitute word for GORD in some of the evidence. I have not overlooked his submissions. But, as I have said, s 44 of the AAT Act confines the Court’s role to that of correcting an error on a matter of law. That Act does not empower the Court simply to decide that it would have, or may have, reached a different conclusion on a question of fact on which the Tribunal has made a finding. As I have indicated, there was evidence on which the Tribunal could reasonably have made the finding of fact which it did. Consequently, the attack on those findings does not demonstrate an error on a matter of law.
(vii) In relation to the asserted link between the appellant’s GORD and the medicine prescribed to treat his ulcer and his anxiety (both Army-related), the Tribunal noted that both doctors said that there is no established link between taking the smooth muscle relaxant drugs and GORD. The doctors apparently agreed that the taking of such drugs might cause some regurgitation on a short term basis, but said that when ceasing taking the drugs the reflux would quickly disappear. The Tribunal accepted their evidence. It decided that there is no link between the appellant’s GORD and the medication that he was prescribed for treatment of anxiety or ulcer during his Army service. It accepted that he had the symptoms he complained of. It accepted that he has GORD. However, the Tribunal said it was positively satisfied that there is no link between the GORD and the taking of that medication. It did not conclude that there was an insufficient link, or a link which was not sufficiently material. It made a positive finding that there was no link.
That finding was one which, in my view, was reasonably open to the Tribunal on the material before it. Again, the appellant argued vehemently that the finding was wrong. There was evidence which, if accepted, might have supported a different factual finding. But that does not demonstrate of itself that the Tribunal erred on a matter of law. I repeat that that is the limited basis on which the Court may interfere with the Tribunal’s decision. No such error has been demonstrated in relation to this aspect.
Accordingly, even if the Tribunal misstated the relevant legal test for connection at [93] of its reasons, it made a positive finding on the issue adverse to the appellant. Its positive adverse finding, namely that there was no link between his GORD and the taking of that medication means necessarily that it found the employment had not contributed to a material degree or in any way at all to the GORD. In those circumstances, the Tribunal has not misapplied the law in a way which affected its conclusion, even if it be accepted that its reasons at [93] indicate the causal test it applied.
38 For the sake of completeness, in my view, the Tribunal’s finding that the appellant did not consume alcohol excessively during his Army service and that it did not contribute in a material degree or in any degree to his GORD was also reasonably open to the Tribunal. It had regard to his medical records and assessed his own evidence on that topic.
39 It did not accept on the evidence, including his own history of his prior alcohol consumption provided to Dr Hetzel in 1998, that he consumed alcohol to excess during his time in the Army. It made a positive finding of fact that the army service did not involve excessive consumption of alcohol.
40 Given that finding of fact, the hypothesis of connection did not need to be addressed to determine whether (if it were the case), the Army service contributed in a material way (or even, if the Tribunal incorrectly asked, had a strong causal link) to his GORD.
Issue 3
41 The Tribunal’s review is informal, but the Tribunal is required to accord procedural fairness to the parties to a review: s 39 of the AAT Act, and see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; Donnelly v Repatriation Commission (1987) 73 ALR 350; 3D Scaffolding Pty Ltd v Commissioner of Taxation [2008] FCA 1477; Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [57] and the cases there cited. It must receive the reasons for decision of the decision-maker whose decision is under review and the relevant material before that person: s 37 of the AAT Act. The parties must be given an opportunity to present evidence and to make submissions: s 39, AAT Act. It may also obtain further information from the decision-maker: s 38, AAT Act. Hence, it is clear that the Tribunal must ultimately make its decision on the matter before it in accordance with those processes.
42 However, in my view, the Tribunal did not fail to accord procedural fairness to the appellant in conducting its review or in making its conclusions.
43 The appellant in his notice of appeal asserts that the Tribunal unfairly intervened in the course of the review to assist the respondent’s legal advisers, and in preventing the appellant to run his case in the way that he wished. At one point in his oral submissions, he suggested certain relevant material was withheld from the Tribunal, but that contention was not made out.
44 I have reviewed the conduct of the review by the Tribunal in the light of the appellant’s contentions. Many of his contentions focus on pieces of evidence which the Tribunal, ultimately, did not find persuasive when it came to make its findings of fact.
45 There is also no basis for the assertions that the Tribunal conducted the review unfairly or in a way which demonstrates that it did not undertake its task with a mind open to persuasion.
46 The appellant referred extensively to the transcript of the hearing before the Tribunal to make out those assertions. It has been carefully considered. The transcript does not bear out the claims by the appellant.
47 It is clear that the appellant was given the opportunity to call evidence. He gave evidence, including by reference to documents available to him. Certain of the documentary material was not received in evidence, as the Tribunal ruled that it was not relevant and could not be helpful to its fulfilling its review function. That material was attached to his reply submissions. I do not consider that the Tribunal wrongly rejected that material. It was entitled to require the appellant to give direct evidence of the material facts, supported by such primary documentary evidence as was available. It gave him the opportunity to do so. The history recorded (and apparently accepted) by a delegate of the Repatriation Commission in 2009 when considering a different claim by the appellant is not direct or primary evidence. It was not inappropriate for the Tribunal to require expert medical evidence as to the aetiology of GORD and whether GORD was or may have been caused by or related to his Army service. Nor do the Tribunal’s rulings in the course of the appellant’s evidence demonstrate that it was not bringing, or might not bring, an open mind to the resolution of the issues. At times, the appellant’s responses to questions were vitriolic or abusive, and the Tribunal said such a style of response was unhelpful. It pointed out that certain of his answers assumed a medical expertise which he did not have. It expressed concern about Commission’s incomplete briefing of a medical witness and so the need for a delay. It was mindful of the need for the matter to be progressed expeditiously, consistent with fairness. It required the appellant to respond to questions in cross-examination to challenge certain of the matters his evidence-in-chief had addressed, partly by reference to records of apparently inconsistent statements to his doctors on matters of his medical history.
48 At the start of the closing submissions, the appellant contended that the Tribunal had prejudged the issues: in particular he said that the respondent had failed to take into account that he had suffered heartburn during his Army service, and somehow the Tribunal had prevented him from contradicting that erroneous position. That is not correct, as the Tribunal permitted the appellant to adduce evidence on the topic and (as its reasons show) it addressed independently of the respondent’s view the significance of the history of heartburn during his Army service. The balance of the transcript which the appellant identified in support of his contentions is simply the closing submissions, much of which are submissions by the appellant, mostly uninterrupted. The questions during the closing submissions seek to understand or test propositions being put. There is nothing there which indicates that the Tribunal may have had, to the assessment of a reasonable observer, a closed mind to the consideration of the review. That is not shown to exist by the Tribunal not accepting the appellant’s contentions, including in particular that his heartburn during his Army service demonstrated that he had GORD during and from that time. It does not add to the appellant’s case to assert as vehemently as he does, with the label of perverting the course of justice, that the Tribunal somehow erred on a matter of law by not accepting his submissions.
49 In my judgment, the appellant has failed to establish that the Tribunal, by the conduct of its review, did not give the appellant an appropriate opportunity to present evidence and to make submissions. Nor has he made out that the Tribunal was actually biased or, by the way it conducted the review, might a fair-minded observer reasonably apprehend that the Tribunal did not bring an impartial and unprejudiced mind to its task: Minister for Immigration v Jia Legeng (2001) 205 CLR 507; Johnson v Johnson (2000) 201 CLR 488. In substance, in my view, the appellant’s complaint amounts to no more than that he disagrees with the Tribunal’s findings of fact for the reasons addressed when considering issue 2 above.
Issue 4
50 The Tribunal correctly said that, in the light of its findings that the appellant first sought treatment for GORD only in the 1990s, the definition of “disease” in the SRC Act meant that it had to be satisfied, on the balance of probabilities that his Army employment contributed in a material degree to the onset or aggravation of his GORD.
51 As noted above, in relation to that issue, the introduction of the “material degree” test is a legislative development different from that which was to be applied under the 1971 Act.
52 In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 (Treloar) the Full Federal Court considered the meaning of the definition of “disease” in the SRC Act, in particular the effect of the word “material.” The Court said at 323:
The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once a link is established, however, it matters not that the contribution be large or small.
53 The test was further considered by Finn J in Comcare v Sahu-Khan [2007] FCA 15 who commented at [16] in relation to the definition of disease then in force in the SRC Act compared to the definition which applied under the 1971 Act:
Bearing in mind that the course of statutory construction is often not aided by substituting for the words used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii) whether this will be so in a given case would be a matter of fact and degree.
That passage was quoted by the Tribunal in its reasons for decision. Immediately before that, it said at [82] that it is now established that the inclusion of the word “material” in s 4 of the SRC Act requires more than a minor or incidental connection between the injury and the employment that it is alleged has contributed to the injury or disease. In the context of a disease claim, that is not exceptional, provided it is applied only to such a claim.
54 The Tribunal then identified and dealt with the four propositions presented by the appellant, namely that he developed GORD during his years in the Army and suffered from it as a result since; that he developed GORD after leaving the Army and as a result of taking anti-cholinergic drugs and in particular Librax and Merbentyl; that his GORD came about because he was put on a high fat diet by an Army doctor and gained weight; and fourthly that the excessive consumption of alcohol during his Army services contributed in a material degree to his GORD.
55 After rejecting (again) certain of those propositions, the Tribunal by way of conclusion made the remarks in [93] set out at [16] above.
56 In view of the definition of disease in s 4(1) of the SRC Act as relevantly in force, it was incorrect to say that the Tribunal needed to be satisfied that there is a “strong causal link” between the appellant’s Army service and the onset, acceleration or aggravation of his GORD for that condition to be a compensatable disease. If the Tribunal applied that test, it did so erroneously. That is not what Finn J said in Sahu-Kahn. His Honour said that there needed, by virtue of the insertion of the materiality test in the definition of disease, to be a stronger causal link than previously was required by the 1971 Act. His Honour did not say, and it does not follow, that that causal link need be a “strong” one.
57 However, that apparent error on the part of the Tribunal does not, in my view, in fact demonstrate that the Tribunal erred in applying the law, or by misunderstanding the relevant legal test, for the purposes of determining the appellant’s claim.
58 In my view, [93] of the Tribunal’s reasons, although clearly inappropriately expressed, does not demonstrate error on the part of the Tribunal. When the reasons of the Tribunal are read carefully, that paragraph of its reasons is an inappropriate summing up of a series of conclusions. It does not indicate that the Tribunal, in addressing the maters which it was required to address, in fact incorrectly applied a “strong causal link” test, rather than a “contribution in a material way” test to the question of the relationship between his GORD and the appellant’s Army service. The Tribunal’s reasons are to be read as a whole. Earlier in its reasons, it said that the appropriate test, if the facts upon which the hypothesis of connection were made out, was whether on those facts the Army service on the balance of probabilities contributed in a material way to the onset or aggravation of his GORD. That is the test imposed by the definition of “disease” as it then stood.
59 In addition, as discussed when considering the first issue, it was a matter for the Tribunal to decide as a fact when the appellant first suffered from GORD. It was necessary for the Tribunal to do so to determine whether to apply the 1971 Act or the SRC Act. Once it had made that decision (as I have found, without any error of law on its part) it then had to decide if his GORD is a compensable disease as defined in that Act. That required the Tribunal to decide whether the GORD or its aggravation was contributed to in a material degree by his Army employment. That is a separate question from the question about whether that particular disease was suffered at all, or when it came to be suffered. The issues of fact to be determined as to the GORD, the time of its onset or aggravation, and the nature of the employment and the employment activities are separate from and logically prior to any issues as to the causal relationship between the disease and the employment activities being assessed.
60 The appellant contended that there was an error of law on the part of the Tribunal by failing to properly apply the law as to the clinical onset of a disease. He referred to certain observations of the Full Court in Lees v Repatriation Commission [2002] FCAFC 398. In my view, the time when a disease occurs is a question of fact. It is clear enough that the diagnosis of a disease may be made contemporaneously or retrospectively, based upon the clinical signs and the symptoms which existed. The existence of a particular symptom, such as heartburn, may be consistent with the presence of a particular disease or it may (as here) be identified as indicative of one or more possible diseases. It then becomes a matter of fact to decide when the onset of the disease occurred. In this matter, GORD was not medically diagnosed in 1976 or during the appellant’s Army service. The symptom of heartburn could have indicated its presence at that time. The Tribunal found, however, that it was not the cause of the symptom of heartburn. It did so on the basis of medical evidence. Whether it was mistaken in that finding (which the appellant asserts to be the case), its finding of fact does not demonstrate any error of law on its part in the way the appellant claimed.
61 Accordingly, in my judgment, the appeal must be dismissed.
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I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
Dated: 30 April 2010
