FEDERAL COURT OF AUSTRALIA

Smith v Comcare [2012] FCA 502

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    Mr Lawrence Smith commenced work as a meat inspector in 1977 for the Commonwealth through what is now the Quarantine and Inspection Service. He stopped work in November 2008 due to severe pain in his right hip and, on 9 December 2008, he had a total hip replacement. Unfortunately, there were serious complications following this surgery and, on 14 March 2010, he was medically retired.

2    The issue in the present case arises from an application for workers compensation lodged by Mr Smith in 2009 relating to his right hip. In due course this application was heard by the Administrative Appeals Tribunal (‘the Tribunal’) by way of a review of an earlier Comcare decision, by which his application for compensation was refused. Mr Smith’s case before the Tribunal was that his injuries resulted from the ‘nature and condition of his employment over some 30 years’ and that he had first noticed them in 2007.

3    Comcare is liable to pay Mr Smith compensation in accordance with the Act ‘in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment’: Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’), s 14(1). By s 4(1) of Act (as it stood at the times relevant to this litigation: see Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), sch 1, s 42) the expression ‘injury’ was defined to include, inter alia, a ‘disease suffered by an employee’. ‘Disease’ was precisely defined in the same provision as follows:

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.

4    Mr Smith’s case was that he had osteoarthritis which was an ‘ailment’ and that this ‘ailment’ had been contributed to ‘in a material degree’ by his employment as a meat inspector. There was no dispute, perhaps unsurprisingly, that his osteoarthritis was an ailment; the critical question was whether it had been contributed to in a material degree by his employment as a meat inspector.

5    The Tribunal concluded that Mr Smith’s osteoarthritis had not been contributed to in a material degree by his employment and affirmed Comcare’s earlier refusal of Mr Smith’s claim: Smith v Comcare [2011] AATA 662.

6    From that determination Mr Smith now appeals to this Court.

7    Mr Fernon SC who, with Mr Mrsic of counsel, appeared for Mr Smith on the hearing of the appeal put Mr Smith’s case as follows: amongst the matters to be determined by the Tribunal was the significant question of whether Mr Smith’s osteoarthritis had been contributed to in a material degree by his employment. But it was also required to determine when Mr Smith’s injury had occurred. That latter question was governed by the somewhat technical operation of s 7(4) which was a deeming provision. It provided:

(4)    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.

8    What was important about s 7(4) was its pointed reference to ‘an injury, being a disease’. The definition of ‘disease’ (set out above) included within its interstices the requirement of material contribution by employment. Although somewhat densely expressed s 7(4) therefore took as its point of departure a prior determination by the Tribunal that an employee had suffered an ailment which had been contributed to in a material degree by Commonwealth employment. So viewed, Mr Fernon submitted, the scheme of the Act demanded a particular order for the resolution by the Tribunal of two issues: first, it had to identify an ailment which had been contributed to in a material degree by Commonwealth employment; secondly, and only when that first step had been completed, it was then necessary to ask the question posed by s 7(4), that is, when the injury had been sustained.

9    These observations were significant in this case, so Mr Fernon submitted, because the Tribunal had disregarded the order in which these questions were to be considered. The reasons of the Tribunal showed that it had determined the s 7(4) question at an earlier point in its reasons (at [63]) than that at which it had determined the issue of material contribution (at [72]-[82]). Nor was this to be seen as a mere technicality. By inverting the correct order in which the questions were to be asked the Tribunal had misled itself. Mr Fernon drew particular attention to [81] in the Tribunal’s reasons which was as follows:

On Mr Smith’s evidence, the work at Wagga was more onerous prior to 1993 when he was involved in mutton as well as beef inspections. However, the evidence of Dr Browne and Professor Sambrook was that the aggravation of Mr Smith’s hip osteoarthritis in 1997 was related to his activity in the years immediately preceding that onset.

10    What this showed was that the Tribunal had been misled into thinking that the question it had to consider was whether Mr Smith’s employment in the year 1997 (that is, the year it had determined the injury occurred under s 7(4)) had contributed to his osteoarthritis in a material degree. But this, so the argument ran, was not the question at all. The correct question was whether Mr Smith’s employment over the whole period from 1977 to November 2008 had contributed to his osteoarthritis. Only following an affirmative resolution of this question, according to the argument, should the Tribunal turn to the question of timing. By inverting the correct order of the issues the Tribunal had, therefore, ended up asking itself entirely the wrong question.

11    Despite the force and clarity with which Mr Fernon advanced this argument I regret that it is not one to which I am able to accede. I accept, at least in principle, that s 7(4) assumes that it has already been determined that there is a ‘disease’ or an aggravation of a disease. This is what the text of s 7(4) says.

12    I am also prepared to assume in Mr Smith’s favour that the Tribunal did determine the issue raised by s 7(4) before in fact determining whether there was a disease or an aggravation of a disease. In making that assumption I would not want it thought, however, that I would necessarily accept that the mere fact that one paragraph of a set of reasons appears sequentially before another means that it is necessarily anterior in the process of reasoning itself. It is convenient to assume in this case, however, that the Tribunal’s conclusion on s 7(4) did precede its findings on aggravation.

13    The more immediate difficulty for Mr Smith is that I do not think that [81], read in the full context of the Tribunal’s reasons, can bear the meaning Mr Fernon seeks to put upon it. One must begin with the evidence which the Tribunal examined about Mr Smith’s employment history. As the Tribunal noted, his working life in the slaughtering industry had commenced at the abattoir at Forbes after he finished his schooling in 1968 where he remained, apart from a 12 month break at Blayney, until 1986. He worked initially at Forbes abattoir as a labourer, then as a slaughterman, and in 1977 he became a meat inspector. The Tribunal considered in detail the work which Mr Smith did in that position at Forbes. It analysed the carcasses he inspected, their weights and the means by which they were moved from work station to work station. It described, with perhaps alarming precision, just what Mr Smith’s duties entailed. For example, it described his duties in relation to pig viscera this way (at [14]):

For pigs, viscera inspection was made difficult by the weight of the organs which required lifting to roll them over in order to inspect them completely. Inspection of pig heads was made difficult because they remained attached to the carcass and hung very low necessitating bending to undertake the inspection.

14    Having described in that kind of detail Mr Smith’s work at Forbes the Tribunal then moved to a description of his duties and the work environment at Wagga Wagga. In this it was assisted by a DVD which showed the current inspection processes at that abattoir. It noted Mr Smith’s objection that the matters depicted on the DVD did not match precisely his duties and reflected some changes of procedure since 2008 when he finished working. The Tribunal proceeded to describe, in detail, the daily events on the slaughterhouse floor.

15    Having done so, it noted that Mr Smith finished working at Wagga Wagga in 2008 and that he has not worked since. Because it will later be relevant it should be observed that the Tribunal noted that whilst at Wagga Wagga – I interpolate, that is, from 1987 to 2008 – Mr Smith also spent six weeks of each year at other abattoirs in New South Wales (at [25]).

16    The significance of the Tribunal’s detailed findings about the occurrences at Forbes and Wagga Wagga is that it is difficult to discern from them any limitation in the Tribunal’s focus to the events of the year 1997. To the contrary, its findings appear to be, as one would expect in a case in which material contribution is alleged, a thorough survey of the whole of Mr Smith’s working history.

17    At [78] the Tribunal then dealt with a body of expert literature on the topic of occupational activity and osteoarthritis. This academic material assessed the issue of aggravation by reference to weights borne and postures adopted. On the same issue the Tribunal had earlier considered the evidence of a rheumatologist, Dr Browne, who had seen the Wagga Wagga abattoir DVD and who did not think that the meat inspection duties depicted in it would have caused osteoarthritis (at [50] and [53]). The Tribunal then dealt with that material (at [79] and [80]) before reaching its conclusions at [81]-[83]. Although I have set [81] out above it is useful, at the risk of repetition, to set out in its full context in [79]-[83]:

[79]    The majority of those studies and, indeed, the medical reports in evidence support the need for heavy lifting in employment in order to have an association with hip osteoarthritis. The Juhakoski report also implicated light objects but only in the context of “much lifting” thereof. Dr Browne, who implicated the employee’s flexed position to be relevant, also required that to be done in the context of lifting. His evidence in relation to the DVD was that he observed no lifting. I am satisfied that Mr Smith’s meat inspection duties at Wagga did not involve him in heavy lifting and that the only lifting of any moment was in relation to the turning of items at the viscera table. Even in that regard, the motion was more one of quickly flipping the item over rather than of lifting. I am satisfied that Mr Smith’s inspection duties at Wagga did not make a material contribution to the aggravation of his hip osteoarthritis.

[80]    Mr Smith described a greater degree of heavy work when allocated to relieve at more remote abattoirs. However, there is no evidence specific to the nature of the work at those other abattoirs. In any event, I am satisfied that the short periods of Mr Smith’s allocations to those abattoirs was not such as to make a material contribution to his hip osteoarthritis.

[81]    On Mr Smith’s evidence, the work at Wagga was more onerous prior to 1993 when he was involved in mutton as well as beef inspections. However, the evidence of Dr Browne and Professor Sambrook was that the aggravation of Mr Smith’s hip osteoarthritis in 1997 was related to his activity in the years immediately preceding that onset.

[82]    There was no medical evidence which supported a material contribution to Mr Smith’s hip osteoarthritis from repetitive turning by Mr Smith to sterilise his knife or to any specific incident of trauma to the hip. There is no evidence that Mr Smith’s hygiene inspections and load out duties involved any lifting

DECISION

[83]    I am satisfied that Mr Smith’s employment as a meat inspector did not materially contribute to his hip osteoarthritis. Accordingly, the decision under review is affirmed.

(Emphasis added in [81].)

18    Central to Mr Smith’s case is the emphasised portion of [81] which, so it is submitted, suggests that the issue of aggravation was looked at only through the prism of 1997. But that reading of [81] is antithetical to the surrounding context and the balance of the Tribunal’s reasons. Nothing in [79] suggests that the Tribunal limited its focus to 1997; more is this so when the Tribunal’s consideration of the facts concerning the events at Wagga Wagga extended over the whole of the period 1987 to 2008. Precisely the same difficulty emerges from [80] and its reference to the work at remote abattoirs. As foreshadowed above, the Tribunal’s treatment of the work at those abattoirs was not in any way limited to 1997.

19    Most problematic for Mr Smith’s case is [81] itself which in terms discusses the work which took place at Wagga prior to 1993. If, as Mr Smith’s submission necessarily entails, the Tribunal blinkered its approach by focussing solely on 1997 in considering the issue of aggravation then is difficult to discern why it might have been examining events prior to 1993. Mr Fernon submitted that this was as close as the Tribunal got to looking at the correct issue but that it nevertheless fell short. This was because, properly construed, the statement was suggesting that the Tribunal’s real concern was the 1997 question. I do not, however, think that this is a plausible reading of [81].

20    I do not accept therefore the submission that in [81] the Tribunal limited its consideration in the manner suggested.

21    Once that is accepted, no material error can arise from the Tribunal having considered the s 7(4) issue in advance of the material contribution question. It was not explored by either party why, in this case, the s 7(4) question needed to be asked (or answered). Without drawing a final conclusion on that matter, I would imagine that the time at which the injury was taken to have occurred may well have impacted upon which version of the Act was to apply. Whatever the answer to that question, however, the Tribunal correctly approached the issue of aggravation by looking at the whole period form 1977 to 2008. Even if it was incorrect to consider the issues posed by s 7(4) before the disease in question had been identified that error had no impact on the manner in which the Tribunal approached the issue of material aggravation.

22    Pointedly, it was not suggested in this Court that the Tribunal had erred in concluding that the injury should be taken to have occurred in 1997; that is, although it was argued that the question had been answered out of order it was not suggested it had been answered incorrectly. So viewed, the only relevance advanced for the notion that it had been answered prematurely was the argument, which I have rejected, that the Tribunal had thereby mishandled the issue of material aggravation.

23    What this means is that the issue which Mr Smith seeks to ventilate has no relevance to the outcome of the proceedings. This is not a criticism of the question of law posed; rather, it is the consequence of rejecting Mr Smith’s interpretation of [81].

24    The Further Amended Notice of Appeal raised the following three questions of law:

1.    In determining whether an employee’s ailment is a disease and thereby an injury, for the purpose of the definitions of “disease” and “injury” in s.4 of [the Act]:

(a)    is it necessary for the Tribunal to determine whether the ailment or aggravation of that ailment suffered by the employee was contributed to in a material degree by the employee’s employment?

(b)    and, if so, is it necessary to make that finding prior to considering when the employee first sustained the injury

2.    Did the Tribunal make findings that were not supported by any evidence?

3.    Should the DVD re-enactment tendered by the Respondent have been admitted into evidence?

25    For the reasons set out above, I would answer Question One ‘Not necessary to answer’.

26    At the hearing the second and third issues were abandoned, correctly in my opinion. They had no prospects of success. Also abandoned prior to the hearing was reliance upon the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds relating to it could rise no higher than the single question of law which Mr Fernon pursued at the hearing.

27    In those circumstances, the application should be dismissed with costs.

Associate:

Dated:    18 May 2012