FEDERAL COURT OF AUSTRALIA

Baranski v Comcare [2012] FCA 925

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 27 February 2012 which affirmed a decision of a delegate of the respondent, Comcare, dated 5 August 2010. The delegate’s decision was to revoke a determination dated 10 August 2007 and to deny liability for compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of the applicant’s condition of “displacement of intervertebral disc-lumbar” and his secondary condition of “major depressive disorder, recurrent episode”. The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

Background

2    The applicant’s claim is that he injured his back at work on the morning of Friday 23 March 2007 when returning a toolbox to a storage cabinet. At the time, the applicant was employed as a technical officer at the Centre of Maritime Engineering (CME) in the Department of Defence. On 10 May 2007 he lodged a claim for compensation. On 10 August 2007 the respondent accepted liability in respect of that claim. In time, the applicant also developed a depressive illness. On 7 August 2009 the respondent accepted liability for this secondary condition. On 23 June 2010 the applicant’s employer sought a reconsideration of the respondent’s acceptance of liability. This reconsideration led to the delegate’s decision of 5 August 2010.

3    Section 14(1) of the Act provides:

14 Compensation for injuries

(1)    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

4    Section 5A(1) of the Act relevantly provides:

5A Definition of injury

(1)    In this Act:

injury means:

…

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

…

5    The Commonwealth may request a determining authority to reconsider a determination made by it: s 62(2) of the Act. A decision made under s 62(2) of the Act is a “reviewable decision”. Application can be made to the Tribunal to review such a decision: s 64(1) of the Act.

6    In the present case the only question before the Tribunal was whether the respondent was liable under s 14 of the Act to compensate the applicant for an injury to his back which he claimed had occurred at work. If that physical injury was not work-related, in the sense that it did not arise out of or in the course of his employment, then the respondent was not liable. If the respondent was not liable to compensate the applicant for the injury to his back, it followed that it was also not liable to compensate the applicant for his psychiatric condition, which was secondary to his physical injury.

7    The Tribunal accepted that:

    the applicant removed a toolbox from a cabinet, and replaced it, on 23 March 2007;

    the applicant had sustained an injury to his lumbar spine (namely, a disc protrusion); and

    the weight of the medical evidence supported the view that a lifting and twisting action, such as described by the applicant when lifting the toolbox, is the most usual cause of a disc protrusion.

8    However, because of:

    inconsistencies in the applicant’s evidence;

    inconsistencies between the applicant’s evidence and that of other witnesses; and

    the implausibility of some of the applicant’s evidence,

the Tribunal concluded that the applicant did not injure himself in the way that he had claimed.

9    Based on this conclusion the Tribunal was not satisfied that the applicant’s injury was one arising out of or in the course of his employment.

10    In order to appreciate the way in which the applicant advances his appeal, it is necessary at the outset to refer to the evidence before the Tribunal as recorded by it and to note a number of findings made by the Tribunal in respect of that evidence.

The evidence recorded by the Tribunal

11    The Tribunal received oral evidence from:

    the applicant;

    the applicant’s wife, Akisi Baranski, from whom the applicant was separated;

    Geoffrey Wilhelm, the then Deputy Director of the CME;

    David Elliot, the applicant’s supervisor at the time of his injury;

    Danielle Hodge, who says she was present when the applicant lifted the toolbox;

    several of the applicant’s co-workers; and

    medical witnesses.

12    The Tribunal also had before it a large amount of documentary material, which included written statements by the applicant and the lay witnesses, and various medical reports.

The lay evidence

13    The applicant gave two versions of the events of the morning of 23 March 2007 when he claims to have suffered his injury. He says that he was at his desk at about 9.15 am on that day when Ms Hodge, a project engineer, asked him to get two industrial thermometers from the toolbox where they were stored. The applicant was eating his breakfast at the time and asked Ms Hodge to return in about 20 minutes. It is common ground that Ms Hodge left and then returned a short time later.

14    In an Accident Report dated 29 March 2007, and in a written statement dated 30 November 2010, the applicant said that at about 9.25 am he picked up the toolbox from the cabinet, removed the thermometers and placed them on his desk. He then returned the toolbox to the cabinet. He said that he did this by bending to a squatting position and twisting to the side, extending his arms. He said that he immediately felt a “strong current” running from his left foot up his left leg and into his lower back. He said this was “like a strong zapping pain”. After managing to get the toolbox inside the cabinet the applicant said that he immediately sat down because he was experiencing strong cramps in his lower left leg. He said that, once the pain lessened, he locked the cabinet and returned to his work. He said that Ms Hodge returned at about 9.45 am. He handed her the thermometers and she left immediately.

15    The Tribunal recorded that, in his oral evidence, the applicant described a different sequence of events. He said that he was removing the thermometers from the toolbox when Ms Hodge returned. He gave them to her and she left. He then closed the toolbox and returned it to the cabinet. He repeated his evidence that on returning the toolbox to the cabinet he experienced severe pain, which he described as a “kind of electrocution” from his foot up into his back. He said that he dropped the toolbox in the cabinet, sat down and rubbed his leg to ease the pain.

16    In each of these accounts the applicant’s evidence was that he was alone when returning the toolbox to the cabinet.

17    The applicant did not report this incident at the time. In his written statement of 30 November 2010 he said that Mr Elliot gave him new tasks to do at about 10.15 am which kept him busy for the rest of the day. He said, however, that he found it very difficult to work for the rest of the day because the pain kept returning and he had to keep rubbing his thighs to relieve it. He said that at lunchtime he went for a walk to try to ease the pain. This gave him some relief but he said that he continued to experience cramps and “tremendous pain”. He said that he went for a walk again after lunch to try to ease the pain. He said that he was limping when he left work at 4.15 pm.

18    The applicant said that he continued to experience pain and muscle spasms in his leg when travelling home by train. He said that at home he walked to the end of his long driveway with difficulty but the pain forced him back to the house. He said that, by the evening, the pain was so bad that he had to take to his bed. He described the pain in his back and left leg as “severe”.

19    The applicant said that he spent the entire weekend in bed, unable to move. He said that he did not eat or drink, or go to the toilet or get up for any reason. He said that he could not raise his arms over his head. He could only just move his head. He said that his wife visited him on Friday evening at which time he told her that he had hurt himself lifting the toolbox.

20    The applicant went to work on Monday morning. He gave evidence that it took him 20 minutes to get out of bed “with overwhelming will”. He could barely manage to dress. He said he “couldn’t walk” and was suffering “excruciating pain”.

21    He said that Ms Hodge returned the thermometers that morning. She left them on his desk for him to put away. The applicant said that he asked Mr Elliot to remove the toolbox from the cabinet because he could not lift anything and was having difficulty walking. Mr Elliot did so and then returned to his own office. The applicant says that when Mr Elliot was removing the toolbox he (the applicant) explained that he had hurt himself the previous Friday morning while removing the toolbox from the cabinet. He said he told Mr Elliot that “in an attempt to mitigate the pain [he] attempted to walk/jog”. The applicant said that while he was talking to Mr Elliot that morning, Mr Wilhelm walked past. The applicant says he followed Mr Wilhelm into the pantry where he told him about the pain in his back and legs.

22    The Tribunal found that the applicant left work at around 10.30 am on Monday morning to see his general practitioner. The applicant’s usual general practitioner was Dr Jeyarani Sivasubramaniam. Dr Sivasubramaniam was not available that morning. The applicant saw Dr Mohammed Safi instead. Dr Safi recorded in the applicant’s medical notes that the applicant had left buttock pain, thigh pain and a cramping sensation. He also recorded that the applicant had difficulty walking. Dr Safi made no reference to possible causes for the applicant’s symptoms or to an injury at work on 23 March 2007. Indeed, the applicant says that he did not tell Dr Safi how he had hurt his back. He said that he was in “such strong pain” that he could not speak. Dr Safi referred the applicant for an immediate CT scan and X-ray.

23    The applicant saw Dr Sivasubramaniam the next day. He says that he told her that he had lifted a heavy weight at work. Dr Sivasubramaniam recorded that the CT scan and X-ray showed that the applicant had a disc bulge at L3/4 with no nerve compromise. Other evidence records the disc protrusion at the L4/5 level. The Tribunal noted that the following observation was interlined in the notes made by Dr Sivasubramaniam: “at work – 30 kg tool box? on 23/3/07”.

24    As this matter featured in one of the applicant’s grounds of appeal, it is convenient at this stage to record the following observation made by the Tribunal (at [82]):

… This last note appears possibly to have been added later. Dr Sivasubramaniam gave evidence that, from memory, she did not think this was so but, sometimes, if notes are not finished at the time, they are written later. She certified [the applicant] unfit for work until 30 March 2007 and issued a standard medical certificate. That she did not issue a Work Cover [sic] certificate is difficult to reconcile with her note on 27 March 2007 that it was a work injury.

25    Dr Sivasubramaniam saw the applicant again on 30 March, 4 April and 16 April 2007. On this last consultation the applicant asked Dr Sivasubramaniam for a WorkCover certificate “as he had decided to claim under [WorkCover] as the injury happened at work”. Dr Sivasubramaniam referred the applicant to a neurosurgeon, Dr Brian Owler, and to a physiotherapist. I will refer to Dr Owler’s evidence in more detail later. At that time, however, Dr Sivasubramaniam noted that the applicant had a workers compensation claim. She recommended that he return to work on 21 April 2007. However, as events transpired, the applicant complained of continuing pain and did not return to work.

26    I now return to the course of events at the applicant’s work after the applicant left at 10.30 am on Monday 23 March 2007, as recorded by the Tribunal.

27    On Friday 30 March 2007 the applicant went to the office. The Tribunal recorded (at [43]) that it was not clear from the evidence why the applicant went to work on that day given that Dr Sivasubramaniam had certified him unfit for work. The applicant said that, while there, he had a conversation with Mr Wilhelm about his injury.

28    I now turn to the evidence of the lay witnesses called on behalf of the respondent, as recorded by the Tribunal. Significant parts of this evidence contradict the account given by the applicant. In general, the Tribunal preferred the evidence of these witnesses where it was in conflict with the applicant’s evidence.

29    First, as to the events of Friday 23 March 2007, Ms Hodge gave evidence that she came to see the applicant to ask him to get two industrial thermometers from the toolbox where they were stored. She said that she went away while the applicant finished his breakfast. When she returned, the applicant had not yet got the thermometers from the toolbox. She asked him to do so. She said she watched him take the toolbox from the cabinet, take the thermometers from the toolbox, and return the toolbox to the cabinet. She said that she did not see or hear any sign that the applicant experienced pain while doing so. The applicant told her that the toolbox was heavy and that she should be careful if he was not there to help her. He asked her whether she would be returning the thermometers that day. She told him she needed them over the weekend. The Tribunal noted that Ms Hodge’s oral evidence confirmed her written statement in this regard.

30    Ms Hodge also gave evidence that she returned to the office and spoke briefly to the applicant in the kitchen at around lunchtime on that day. Ms Hodge’s evidence was that, in the course of this conversation, the applicant told her that he had gone for a run at lunch because it was a nice day outside. The Tribunal recorded the following (at [19]):

… Under cross-examination, she conceded that she could be mistaken in recalling that he said he went for a run, and he could have said he went for a walk. Either way, she said, he did not demonstrate any symptoms of pain in his leg or back, and he did not mention he was in pain.

31    The Tribunal recorded that the applicant denied having the conversations about which Ms Hodge had given evidence. As to the first conversation (in the morning), the Tribunal found (at [18]) as follows:

Mr Baranski denies that any of the conversation asserted by Ms Hodge occurred. We prefer Ms Hodge’s account. She had no reason to make it up. While she might not recall precisely all details of their conversation, we think it is unlikely she is completely mistaken and that nothing passed between them as Mr Baranski in effect claims. As we come to below, whether or not Ms Hodge was present when he returned the toolbox to the cabinet is important to the credibility of his claim, and we think it more probable than not that she was present.

32    As to the second conversation (at lunchtime) the Tribunal found (at [20]) as follows:

Mr Baranski denies this conversation at lunchtime occurred. He says he did not see Ms Hodge again that day after getting the thermometers for her. Ms Hodge says she recalls this conversation because she had not been at the CME for long and it was probably the only conversation she had had with Mr Baranski other than saying good morning. We prefer her evidence to Mr Baranski’s because of our findings about his credibility generally. Even if she was mistaken about whether he went for a walk or a run, his own evidence was that he went out for a walk at lunchtime.

33    I should record, however, that the Tribunal did not accept one part of Ms Hodge’s evidence. Ms Hodge gave evidence that when she returned the thermometers on Monday 26 March 2007, she put them back in the toolbox herself. She said that she did this not by removing the toolbox from the cabinet, but by loosening the straps on the toolbox, lifting the lid while it was in the cabinet and placing the thermometers in the top compartment. The Tribunal referred to evidence from Joseph Ebejer (who worked in the same bay as the applicant) that it would be difficult, if not impossible, to replace an item in the toolbox without removing the toolbox from the cabinet. The Tribunal found this evidence to be supported by photographs showing the toolbox in the cabinet. The Tribunal also referred to a note by Mr Elliot (to which I will refer in more detail below) to the effect that the applicant asked him to return a “piece of kit” to the toolbox. The Tribunal thought that this could be a reference to the thermometers. Thus the Tribunal found it to be likely that Ms Hodge was mistaken on this point. The Tribunal did not think, however, that its non-acceptance of this evidence reflected adversely on Ms Hodge’s evidence as a whole. The Tribunal recorded (at [32]) that: “Ms Hodge impressed us as a truthful witness” and that “(s)he had no reason not to tell the truth”.

34    Secondly, as to the evidence of what occurred on the evening of Friday 23 March 2007 and the ensuing weekend, Mrs Baranski gave evidence that she did visit the applicant on that evening. She said that he answered the door and was obviously in pain. She confirmed that the applicant had told her that he had hurt himself at work while lifting a heavy toolbox and that he felt paralysed from his chest down to his feet. Although she offered to take him to the doctor, she said that he insisted on staying at home in the hope that the pain would improve. She recalled a previous episode of back pain when he did not go to the doctor for a couple of days, after which he was “all right”.

35    Importantly, Mrs Baranski gave evidence that she visited the applicant again on Saturday evening. She said that the applicant answered the door and was still evidently in pain. They nevertheless had dinner together. She could not remember which of them cooked, but they ate at the kitchen table.

36    Although supporting the applicant’s case in a number of respects, the Tribunal noted that Mrs Baranski’s evidence was, nonetheless, inconsistent with the applicant’s evidence that he spent the entire weekend in bed, unable to move, and that he did not eat or drink or go to the toilet or get up for any reason. The Tribunal made this finding (at [28]):

Mrs Baranski impressed us as a truthful witness. We have no reason to doubt her evidence about her visit to Mr Baranski on Saturday evening. At the very least, her evidence shows that Mr Baranski has exaggerated the extent of the pain he was in over the weekend. We accept her evidence that he told her he had hurt himself at work but whether that is true remains to be considered in light of all the evidence.

37    Thirdly, as to the events of Monday 26 March 2007, Mr Elliot gave evidence that he noticed the applicant limping when he arrived at work that morning. He said that he asked the applicant what the problem was. The applicant replied to the effect: “I injured myself while jogging last Friday evening”. Mr Elliot’s evidence was that, within half an hour of this conversation, the applicant asked him to help remove the toolbox because his injury made it difficult for him to do it himself. Later that day Mr Elliot made a record of this conversation, as follows:

Michael asked me to assist him with removing the inclinning [sic] experiment equipment box so as he could return a piece of kit. He requested I do this as he had an injury which made doing this on his own difficult.

I did this for him and Michael returned the equipment. The box was then left out for the day being returned to its locker later in the day with the assistance of another member of the office, I believe.

On Michael’s arrival at work in the morning (26 March) I noticed Michael limping. I asked him what was wrong. He told me he had injured himself on the previous Friday evening (23 March) while jogging. Across the weekend he was suffering a great deal of pain from this incident, and was still not yet over it.

38    The applicant’s evidence, that on Monday morning he told Mr Elliot that he had hurt himself the previous Friday morning while returning the toolbox to the cabinet, is clearly in conflict with this evidence. The Tribunal recorded that the applicant denied that Mr Elliot had asked him why he was limping, but agreed that he told Mr Elliot about “the jogging”, although the applicant maintained he had also told Mr Elliot about his work injury. The applicant suggested that Mr Elliot’s note about “jogging” referred to the applicant’s attempt to walk when he got home the previous Friday evening.

39    In dealing with the events of the morning of Monday 26 March 2007 the Tribunal recorded that Mr Wilhelm gave evidence that he had no recollection of a conversation with the applicant, as the applicant had claimed. The Tribunal also called into question why the applicant went to work on that day, given his evidence that he was suffering “excruciating pain”. The Tribunal (at [30]) said:

In cross-examination, Mr Baranski was asked why he went into the city to work, rather than to see his doctor, if he was in such pain. He said he felt he needed to report the accident first. He agreed that he had a telephone at home and could have rung his supervisor but said he “needed to go to the doctor anyway”. However, he conceded that his doctor was not in the city but in Parramatta.

40    The Tribunal also queried why the applicant went into the office on Friday 30 March 2007, given that Dr Sivasubramaniam had certified him unfit for work. Nevertheless, the Tribunal noted that Mr Wilhelm confirmed that the applicant did have a conversation with him about his injury on that day. On 2 April 2007 Mr Wilhelm made a short note of this conversation. The note was in the following terms:

Although on personal leave, Michael dropped into the office (reason unknown). We chatted briefly where he mentioned that he had nerve pains that went down one of his legs. He further stated that believed that this was due to him removing items from the inclining experiment boxes that were stored in his locker in his work bay.

41    The Tribunal also noted that Mr Wilhelm made a note on the same day about an earlier conversation he had had with the applicant at some time in the period 19 to 23 March 2007. The note was as follows:

Michael was complaining about leg pain that he stated occurred because he went for a half hour run. The date and time of the run in not known.

42    Although a challenge was made to Mr Wilhelm as an evasive, argumentative and unreliable witness, the Tribunal nevertheless accepted his evidence about these conversations and expressed satisfaction that Mr Wilhelm’s notes reflected “reasonably accurately” each of these conversations.

43    The Tribunal also noted that Mr Ebejer gave evidence that he recalled the applicant and Mr Wilhelm having a conversation about one metre away from the bay where he and the applicant worked. Mr Ebejer’s evidence was that the applicant told Mr Wilhelm that he had gone for a jog the day before and that his leg muscles were feeling strained. The Tribunal found that this conversation must have taken place before 23 March 2007 because Mr Ebejer said that he did not see the applicant again after that date.

44    I turn now to deal with other aspects of the evidence recorded by the Tribunal.

45    Mr Elliot gave evidence that the first he had learned of the applicant’s claim that he had injured himself at work was on 4 April 2007. On that day Mr Wilhelm asked him to “prepare paperwork” because the applicant had said that he had injured himself at work. The Tribunal recorded that this was a matter of some surprise to Mr Elliot in light of the conversation that he had had with the applicant on the morning of Monday 26 March 2007.

46    Mr Elliot gave evidence that over the next 10 days or so he had a number of conversations with the applicant, which he recorded in notes. It is not necessary for me to attempt to summarise the evidence recorded by the Tribunal. It is sufficient for me to observe that the purpose of these conversations, from Mr Elliot’s perspective, was to obtain a statement from the applicant about the circumstances of his injury. The evidence recorded by the Tribunal shows that in the period 4 to 13 April 2007 Mr Elliot was seeking to have the applicant provide a statement. As late as 13 April 2007 the applicant informed Mr Elliot that “he may not need to claim compensation”.

47    The Tribunal noted that the applicant signed an Accident Report dated 29 March 2007 which the applicant gave to the CME Occupational Health and Safety Officer. This document detailed how the applicant said his injury occurred and concluded as follows:

Currently I'm on sick leave and although attending regular medical check ups and subjected to numerous medications, my qualities of live have dropped dramatically. I'm confined to my house living space, can walk for few minutes at the time and occasionally encountering sleepless nights [sic].

Nevertheless despite all the sad stories some remaining hopeful, looking forward to full recovery and happily returning to CME work [sic].

48    The Tribunal made the following finding (at [57]) in respect of this document:

There is no evidence of the date on which this document was received by Mr Baranski’s employer but we do not accept he wrote on 29 March 2007. References in its concluding paragraphs to “attending regular medical appointments” and taking “numerous medications” suggest it was written more than six days after the injury (by which time he had seen his doctor twice). Moreover, the date is at odds with Mr Elliot's records, which we accept as accurate, which indicate that Mr Baranski said on 4 April 2007 that he could not complete his statement “right now”, and on 10 April 2007 that he would work on it, and on 13 April 2007 when he was still not sure if he would make a claim. When this was put to him in cross-examination, Mr Baranski said he told Mr Elliot on 4 April 2007 and 10 April 2007 that the report was ready but he had not posted it. We do not accept his evidence about this. We are satisfied that the statement was not signed on [29 March 2007] and was probably signed after 13 April 2007. It does not follow necessarily that its contents are not true but it raises further doubts about the credibility of Mr Baranski’s evidence.

49    The Tribunal also noted that Dr Sivasubramaniam’s notes for 16 April 2007 showed that the applicant “wants to go on [workers compensation]”. The Tribunal noted that, for reasons which were not clear, the applicant had used his personal leave to cover his absence from work up until that time. The Tribunal queried the explanation given by the applicant. The Tribunal found (at [58]):

… Before the Tribunal his explanation was that there was “disagreement within the Department” as to whether his claim “should be allowed or not”. It is not easy to understand this explanation. Mr Baranski did not formally make his claim until 10 May 2007, and Mr Elliot’s notes show that he was encouraging Mr Baranski before then to lodge his report about the incident. There is no evidence that anyone had suggested his claim might be in dispute at that point.

50    The Tribunal recorded that on 23 May 2007, an assessment was conducted of the applicant’s “workplace and occupational rehabilitation needs”. This assessment involved the applicant, Mr Wilhelm, Mr Elliot, an OH&S officer and the occupational therapist who conducted the assessment. The occupational therapist’s report noted the applicant’s claim that his injury occurred at work. It also noted, however, that discussions with his employer showed that written information “implies the injury first occurred when [the applicant] went jogging on 23 March 2007”.

51    Mr Wilhelm and Mr Elliot were challenged with the proposition that such an assessment would only be conducted if the injury related to work, and not where it occurred outside work. Mr Wilhelm and Mr Elliot each gave an explanation, which the Tribunal accepted. In this connection the Tribunal found (at [62]):

… We accept that they did what they understood was required of them to assess the effects of Mr Baranski’s injury – whether work-related or not – and to deal with a claim which he was entitled to make, regardless of its ultimate merit.

52    The Tribunal also noted that, when the applicant lodged his claim for compensation on 10 May 2007, he gave a negative answer to whether he had “ever had a previous similar symptom, injury or illness, work-wise or otherwise”. The Tribunal noted that this response was clearly not correct because there was evidence that the applicant had suffered two previous episodes of back strain in 2004 and 2005. The Tribunal noted that the applicant had agreed that his answer on the claim form was not correct but, ultimately, the Tribunal did not think that anything in particular turned on the fact that those episodes of back strain had occurred.

53    The Tribunal noted the evidence given by Mr Chowdhury, who started work at the CME at around the same time as the applicant and who was, in 2007, the applicant’s immediate supervisor. Mr Chowdhury said that the applicant had informed him that, on one occasion (the date was not given), he had had a back injury while helping a woman friend assemble or fix a cabinet or wardrobe at her house. The Tribunal found Mr Chowdhury’s evidence of his recollection about this matter to be vague and, in the face of the applicant’s denial that such an incident occurred or that he told Mr Chowdhury about such an incident, it did not prefer Mr Chowdhury’s evidence to the applicant’s on this point. The Tribunal reasoned, in any event, that even if such an event occurred, it did not have any more medical significance than the other two recorded episodes of previous back pain.

54    However, Mr Chowdhury also gave evidence that, some time before his injury in 2007, the applicant told him he had hurt his back when he went walking or jogging at home. Mr Chowdhury could not recall when this conversation took place. He said it could have been one month, or up to three months, before 23 March 2007. The applicant disputed this evidence but the Tribunal regarded Mr Chowdhury as a truthful witness and preferred his evidence about this conversation to that of the applicant.

The evidence of “jogging”

55    One matter of particular significance in the evidence was what the applicant meant by “jogging”. The Tribunal noted that there were various references in the applicant’s own evidence about “jogging” but this evidence was not easy to follow because the applicant variously referred to “walking”, “fast walking”, “walking/jogging” and attempting to “walk/jog”. Also, in a statement dated 16 July 2010 the applicant denied that “jogging took place” on 23 March 2007. This matter assumed significance because of the evidence given by the lay witnesses of the conversations they had had with the applicant in which he referred to hurting his back by jogging.

56    The Tribunal noted that, when tested on this, the applicant said it meant fast walking and that he maintained that he does not jog and has never jogged in his life. When pressed about why he had said in his statement of 16 July 2010 that, at home on the evening of 23 March 2007, he tried “walking/jogging”, the Tribunal recorded this response:

I put jogging – it wasn’t really meant to be there because I don’t really jog. It just happen – I put that.

57    The Tribunal made this finding (at [76]):

We recognise that allowance should be made for the fact that English is not Mr Baranski’s first language but we do not find his explanation persuasive. He clearly understands what “jogging” means because he was emphatic that he does not jog, yet he continues to use the term. We are satisfied that he referred to “jogging” in conversations with others. It is possible that, each time he referred to “jogging”, whether in written statements or conversation with others, all he meant was that he had taken a fast walk. However, we think that unlikely. We accept that he told Mr Wilhelm he had been for “a half hour run”. We do not accept Mr Baranski’s claim, in effect, that he never did more than a “fast walk”. We think it more probable than not that he would go jogging, although how often we cannot say. His denial seriously undermines his credibility.

58    The Tribunal also noted that when asked whether she remembered the applicant doing any running or jogging for exercise, Mrs Baranski replied: “Yes, sometimes”. The Tribunal accepted this answer to be accurate.

The specialist medical evidence

59    I have already referred to the applicant’s consultations with his general medical practitioners Dr Safi and Dr Sivasubramaniam on Monday 26 March 2007 and following. I have also referred to aspects of the evidence in respect of those consultations that are relevant to this appeal. It is necessary to refer to some additional matters in respect of the applicant’s ongoing medical treatment since 16 April 2007 and the evidence given to the Tribunal by the specialist medical practitioners called by the parties.

60    From about June 2007 the applicant had physiotherapy for several months. He also saw Dr Owler in June, July and November 2007. Over that time the applicant reported worsening symptoms. Dr Owler recommended a spinal injection and a discectomy to relieve the pain, but the applicant has declined to have this treatment. Over time the applicant developed symptoms of depression and, as I have noted, in August 2009 the respondent accepted liability for this condition as secondary to the applicant’s back condition.

61    The Tribunal recorded that the applicant claimed that his condition had become progressively worse; that he has pain every day; that he is unable to perform most activities; and that he spends much of his time lying down at home. He said that sitting and lying eases the pain but standing was very painful. He said that he could only walk short distances to catch the bus or to go to the shops, and that he could drive short distances. He said that his wife came most days and helped him with shopping, cooking and cleaning.

62    The Tribunal made the following findings (at [91] and [92]):

    The medical evidence makes clear that, as at 26 March 2007, the applicant suffered a disc prolapse at the L4/5 level.

    The report of X-rays and CT scan on 26 March 2007 showed degenerative changes including early degenerative arthritic changes in the lumbosacral facets.

    All the medical witnesses agreed that the applicant had a disc prolapse at the L4/5 level with associated radiculopathy. It noted, however, that they had differing views about the causes of disc prolapses generally, and the applicant’s disc prolapse in particular.

63    In this connection the Tribunal heard evidence from:

    Dr Owler, to whom I have already referred;

    Dr Neil McGill, a rheumatologist;

    Dr Max Ellis, an orthopaedic surgeon; and

    Dr Keith Lethlean, a neurologist.

64    The Tribunal summarised the evidence of these witnesses. It is not necessary for me to repeat this summary. It is sufficient for me to note the following:

    Dr Owler gave evidence that the lifting and twisting action described by the applicant when he lifted the toolbox is the most common cause of disc protrusion. He said, however, that jogging can cause such an injury but it is unusual and, if it happens, it is usually the “last straw” in degenerative changes. The Tribunal noted that the scans in evidence did not suggest that the degenerative changes in the applicant’s lumbar spine were of that order. Dr Owler agreed that it is possible for a disc to rupture spontaneously but said that this is uncommon and would have to be quite severe to cause a pinched nerve.

    Dr McGill agreed with Dr Owler that a lifting and twisting action is the most probable cause of an L5 disc protrusion. However he also said that he had seen disc protrusions caused by jogging as well as protrusions that have occurred spontaneously.

    Dr Lethlean supported the view that the applicant’s injury was consistent with a lifting and twisting action. However, he said that he did not think that a traumatic incident was necessary for symptoms of the kind experienced by the applicant. He gave the example of a person going to bed and waking with symptoms as a result of some movement while in bed; although, for this to occur, he would expect some degenerative change to be present.

    Dr Ellis agreed with the other medical witnesses that a lifting and twisting action is the most likely cause of an L4/5 rupture, followed by turning or sudden movement. Unlike the other specialists, he considered it to be an “outrageous” suggestion that jogging could lead to such an injury. In his view, it could not.

65    The Tribunal made the following finding (at [106]):

We did not find Dr Ellis’ evidence particularly helpful. In contrast to the other medical witnesses, he effectively discounted the possibility of an L4/5 rupture occurring spontaneously, and he rejected the possibility of jogging as a cause of injury out of hand. We prefer the more considered evidence of Drs Owler, McGill and Lethlean to that of Dr Ellis regarding the range of possible causes of a disc protrusion. We also note that Dr Ellis’ view that the symptoms in Mr Baranski's right leg could be caused by “chemical radiculopathy” were not supported by Dr Lethlean.

The Tribunal’s reasoning and findings

66    I have noted the Tribunal’s acceptance that the applicant removed a toolbox from the cabinet and replaced it on 23 March 2007; that the applicant had sustained an injury to his lumbar spine; and that the weight of medical evidence supported the view that a lifting and twisting action, such as described by the applicant when lifting the toolbox, is the most usual cause of a disc protrusion.

67    I have also noted, however, that the Tribunal concluded that the applicant did not injure himself in the way he had claimed because of a number of features of the evidence. I now turn to the Tribunal’s more specific findings in that regard.

68    The Tribunal made findings to the effect that:

    The applicant gave inconsistent evidence as to whether he returned the toolbox to the cabinet before or after Ms Hodge returned to collect the thermometers. Although this might reasonably be explained by the sequence of events being blurred by the passage of time, the applicant expressed no uncertainty in his oral evidence. He was emphatic about the sequence of events, but gave a different version in his written statements, one of which was written soon after the incident. This inconsistency reflected on the reliability of the applicant’s evidence overall.

    Ms Hodge observed that the applicant replaced the toolbox in the cabinet without giving any sign of pain. If the applicant is to be believed, he experienced severe pain at that moment and had to sit down. Ms Hodge could hardly have failed to observe that to have happened.

    It was implausible that the applicant was in the amount of pain that he claimed and yet failed to mention it to anyone before he left work on that day.

    It was not plausible that an injury occurred at work as he says, causing him excruciating pain, which he did not mention to Mr Elliot who gave him “new tasks” a short time later; that he did not realise he had been injured; or that he did not think of it as a work injury until he was on his way home.

    Although accepting that the applicant was in pain on the evening of 23 March 2007 and over the weekend, it was implausible that the applicant was literally unable to move all weekend and did not eat, drink or go to the toilet, as he claimed, and yet managed to go to work on Monday morning.

    The applicant’s evidence was contradicted by Mrs Baranski’s evidence about their meal together on Saturday evening. Although the applicant told Mrs Baranski that he had hurt himself at work, that did not necessarily make it so.

    The applicant’s evidence about why he went to work on Monday morning made little sense. He could have telephoned work if he thought it necessary to report his injury. His explanation that he had to go into the city in any event to see his doctor was not true, given that his doctor was in Parramatta. The only plausible explanation for going to work on Monday morning was that the applicant was not in the degree of pain he had claimed.

    The applicant had exaggerated the extent of his pain. This did not mean that he did not injure his back at work as he had claimed. However, the applicant’s exaggeration was part of the pattern of unreliable evidence that undermined the credibility of his claims.

    The applicant did not tell Mr Elliot on Monday 26 March 2007 that he had injured himself at work. The note made by Mr Elliot on that day accurately reflects his conversation with the applicant. It was unlikely that Mr Elliot misunderstood what the applicant had said.

    It was difficult to accept the applicant’s claim that he was in too much pain on the afternoon of Monday 26 March 2007 to tell Dr Safi how he had injured his back. It is possible that Dr Safi’s only concern at the time was to send the applicant for investigation and did not take any history, although this seemed unlikely.

    The Tribunal also noted an observation made by Dr McGill about the applicant’s “abnormal illness behaviour”. In that connection the Tribunal had earlier recorded (at [99]-[100]) the following findings by Dr McGill:

Dr McGill found no evidence of radiculopathy in January 2010, and Mr Baranski’s responses on clinical examination could not, in his view, be explained by objective neurological signs. For instance, he said, Mr Baranski reported lack of sensation over his entire left leg which, if true, would necessarily involve nerve root compromise at levels different from those shown on the MRI. Moreover, his ability to walk on his forefeet and heels was inconsistent with more than mild L5 radiculopathy and inconsistent with Mr Baranski’s reported severe symptoms. In other words, his symptoms and signs were not explicable on the basis of L5 nerve root compression.

In Dr McGill’s view, Mr Baranski demonstrated “no genuine neurological abnormality and he demonstrated a great deal of abnormal illness behaviour (that is behaviour not explicable on a physical basis)”. Dr McGill could find no objective neurological signs and noted that Dr Owler did not record any. Moreover, he said, Mr Baranski's reported worsening symptoms was at odds with the usual course of a disc protrusion in which weakness is generally greater at the beginning and gradually improves, although he agreed such a pattern was not impossible.

    The Tribunal recorded that this observation about “abnormal illness behaviour” appeared to be borne out by the applicant’s posture and movement during the hearing. The Tribunal exemplified this by referring to the fact that the applicant spent quite some time during the hearing standing against the wall (which he said relieved his pain). This appeared to be at odds with his evidence that standing caused pain and that only sitting and lying relieved it. Against this, the Tribunal noted that the doctors who saw the applicant most often, over some period of time, found no evidence that the applicant was exaggerating his symptoms.

    The Tribunal concluded (at [121]) as follows:

To accept Mr Baranski’s evidence would mean that, on critical points, Ms Hodge, Mr Elliot, Mr Wilhelm, Mr Chowdhury and Mr Ebejer were all mistaken or lying, partly or wholly, and that his wife is mistaken or lying about visiting him on Saturday evening. Considered separately, each of the matters that in our view undermine his evidence might be reasonably or plausibly explained. However, when his evidence is viewed as a whole, we cannot be satisfied that he injured himself as he claims.

The appeal

69    The applicant’s appeal to this Court can only be on a question of law.

70    In Waterford v The Commonwealth of Australia (1987) 163 CLR 54 Brennan J said (at 77):

A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia "from any decision of the Tribunal in that proceeding" but only "on a question of law". The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact…

71    It is trite that an appeal “on” a question of law is one more confined than an appeal which “involves” a question of law: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; Comcare v Etheridge (2006) 149 FCR 522 at [13]. In Etheridge Branson J said (at [14]):

The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see, Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]-[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.

72    Rule 33.12(2) of the Federal Court Rules 2011 provides:

The notice of appeal must state:

(a)    the part of the decision the applicant appeals from or contends should be varied; and

(b)    the precise question or questions of law to be raised on the appeal; and

(c)    any findings of fact that the Court is asked to make; and

(d)    the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and

(e)    briefly but specifically, the grounds relied on in support of the relief or variation sought.

73    The subject matter of an appeal under s 44(1) of the AAT Act is the precise question or questions of law stated in the notice of appeal as required by r 33.12(2): see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; Ethridge at [13]; HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 at [5].

74    In Birdseye Branson and Stone JJ (with whom Marshall J agreed at [61]) discussed at [6]-[31] the appropriate form of a question of law specified for the purposes of an appeal pursuant to s 44(1) of the AAT Act. Their Honours expressed the view (at [18]) that the then Federal Court Rules disclosed an intention that, in the notice of appeal, the question or questions of law to be raised should be stated “with precision”, with the grounds relied upon in support of the claimed relief providing the “links” between the question(s) of law, the circumstances of the particular case and the orders sought on appeal. In this connection their Honours quoted with approval the remark of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 that it is not legitimate to call in aid the grounds relied on in support of the relief sought to “read down” the stated questions of law to arrive at “what are truly questions of law”.

75    In this connection the Full Court in HBF (at [6]) said:

As Birdseye and Etheridge … make plain, the grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible, as the applicant sought to do in this case, to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading "Grounds", a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the Tribunal.

76    These cases dealt with the requirements of O 53, r 3(2) of the Federal Court Rules. In application, those requirements are no different under r 33.12(2), which, in relevant respects, is in substantially the same terms as the former rule. Indeed, r 33.12(2)(b) is explicit in requiring that the “precise” question(s) of law to be raised on appeal be stated.

77    In his amended notice of appeal filed on 7 May 2012 the applicant identified the questions of law in this appeal as follows:

1.    Whether or not the Administrative Appeals Tribunal failed to properly exercise its powers in the determination of the Applicant’s claim by taking into account irrelevant considerations and ignoring relevant considerations.

2.    Whether or not in respect of the receipt and treatment of the medical evidence the Administrative Appeals Tribunal discharged its functions according to law.

3.    Whether or not the Administrative Appeals Tribunal applied the correct test for causation or, in the alternative, misapplied the correct test for causation.

78     The applicant then identified 16 grounds in support of the relief he claims. As the appeal came to be argued the applicant relied only on grounds 1 to 7 and 13, 14 and 16. Those grounds are stated as follows:

1.    The Tribunal erred in failing to take into account a relevant consideration, namely that the evidence of Danielle Hodge was demonstrated by concessions she made in cross-examination to be incorrect but was nonetheless relied upon by the Tribunal.

2.    The Tribunal took into account an irrelevant consideration or, in the alternative, denied the applicant procedural fairness by speculating as to whether or not notes taken by Dr. Sivasubramaniam dated 27 March 2007 which included a notation that the applicant “had lifted a heavy weight at work – 30kg toolbox? on 23 March 2007” was added in at a later date.

3.    The Tribunal denied the applicant procedural fairness by failing to provide adequate reasons as to why the evidence of Dr. Ellis was “not particularly helpful”.

4.    The Tribunal took into account an irrelevant consideration, namely the existence or non-existence of radiculopathy.

5.    The Tribunal took into account an irrelevant consideration, namely whether or not it was plausible that the applicant did not make mention on the day of injury to another witness, Mr. Elliott, of him sustaining injury.

6.    The Tribunal took into account an irrelevant consideration by placing reliance on events that occurred post injury, namely the applicant walking up and down the driveway and having dinner with his wife.

7.    The Tribunal erred in law by failing to identify the correct test for causation, namely common sense and the furthering of the statutory purpose.

…

13.    The Tribunal erred in law on a whole reading of the Tribunal’s Reasons by raising the standard of proof required of the applicant to a standard higher than the balance of probabilities and misdirected itself accordingly.

14.    The Tribunal erred in law by failing to apply in a situation where a work accident was not witnessed the principle in Luxton v Vines (1952) 85 CLR 352, namely there was not a hypothesis reasonably available to the Tribunal that was equally competing with the applicant’s hypothesis of injury and causation such that the appropriate inference to have drawn was that consistent with the applicant sustaining injury arising out of or in the course of employment by lifting a toolbox and no other hypothesis was available.

…

16.    The Tribunal erred in law by delivering a decision that was so unreasonable that no reasonable decision maker or tribunal would have arrived at such a decision.    

79    In my view the amended notice of appeal does not comply with the requirements of r 33.12(2). The asserted questions of law are not in proper form and do not identify the precise questions of law to be raised on the appeal. Moreover, it is apparent that the applicant has endeavoured to identify questions of law by the various grounds on which he seeks to rely. As the above authorities explain, this is not the proper function of the grounds in a notice of appeal under r 33.12(2). Even so, for the reasons given below, most of these grounds do not truly raise errors of law. As Ryan J stated in Lambroglou at 527:

… If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law…

80    Notwithstanding these matters, the respondent raised no complaint about the form of the amended notice of appeal. It was content to deal with the substance of the matters that the applicant raised in his grounds. In the circumstances, I shall decide the matter likewise.

Consideration

Ground 1

81    This ground discloses no error of law in the Tribunal’s decision. In substance the ground invites the Court to substitute, impermissibly, its own views as to whether Ms Hodge’s evidence should have been accepted by the Tribunal.

82    In that connection the applicant points to various concessions made by Ms Hodge in the course of her evidence and asserts that the Tribunal took no account of those concessions. One particular matter raised by the applicant was that, in a written statement, Ms Hodge said that she had observed no obvious lifting by the applicant of the toolbox on the morning of Friday 23 March 2007 when the applicant returned it to the cabinet. The applicant points out that any such lift was only 5 cm. Ms Hodge explained, however, that what she meant by her statement was that she did not observe the applicant to lift the toolbox as if placing it on a shelf.

83    It is not clear to me how the applicant says that this concession, if it be one, adversely affected Ms Hodge’s overall credit or the acceptance of her evidence more generally. It is clear from the Tribunal’s reasons that it carefully considered Ms Hodge’s evidence. The Tribunal did not accept some parts of it, such as her evidence that she, herself, returned the thermometers to the toolbox on Monday 26 March 2007. The Tribunal made a finding that it was likely that Ms Hodge was mistaken on that particular point. Nevertheless, she impressed the Tribunal as a truthful witness who had no reason not to tell the truth. The Tribunal was prepared to accept her evidence generally and, more particularly, where her evidence was in conflict with the applicant’s own evidence on matters that were important for the Tribunal’s consideration. This was a matter of factual evaluation that was peculiarly for the Tribunal to make. Significantly, it found that, contrary to the applicant’s evidence, Ms Hodge was present when the applicant returned the toolbox to the cabinet on the morning of Friday 23 March 2007.

84    Under this ground the applicant also advances a somewhat different contention, namely that, based on the medical evidence, it could not have mattered at all whether Ms Hodge was present at the time the applicant placed the toolbox in the cabinet.

85    This contention is really an invitation to the Court to embark upon a weighing of the evidence before the Tribunal. The particular matter that impressed itself upon the Tribunal was that, if the applicant experienced severe pain at the moment he returned the toolbox to the cabinet, and had to sit down, as he had claimed, Ms Hodge would have seen this happen. The effect of her evidence was that she was present and it did not happen. On any view, Ms Hodge’s observation (or lack of it), on the facts as the Tribunal found them to be, was relevant to the question of the acceptance of the applicant’s version of the events. It was for the Tribunal to engage in that fact-finding role and to weigh up the evidence as it found it to be.

Ground 2

86    This ground discloses no error of law in the Tribunal’s decision. It fastens upon what was, at its highest, an inconclusive observation made by the Tribunal about Dr Sivasubramaniam’s notes of her consultation with the applicant on Tuesday 27 March 2007.

87    In this connection the Tribunal observed (at [82]) that Dr Sivasubramaniam’s notes contained, as an interlineation, the words: “at work – 30 kg tool box? on 23/3/07”. The Tribunal suggested that this interlineation appeared possibly to have been added later. The Tribunal referred to Dr Sivasubramaniam’s evidence on the matter. It also noted that Dr Sivasubramaniam had certified the applicant to be unfit for work on that day using a standard medical certificate and not a WorkCover certificate, thus suggesting that the applicant’s injury was not reported by him at that time to be a work-related injury. It remarked that it was difficult to reconcile the fact that a WorkCover certificate had not been used with the fact that the interlineation had been made on 27 March 2007.

88    Ultimately, however, the Tribunal found (at [119]) as follows:

We cannot make any firm finding whether Dr Sivasubramaniam’s note about a work injury on 27 March 2007 was added later. She agreed that it was possible but, even allowing she made it at the time, it only shows that is what Mr Baranski told her.

89    In his submissions the applicant did not develop the reason why it was not relevant for the Tribunal to give consideration to the time at which the interlineation in the medical notes was made given that the issue before the Tribunal was whether the applicant’s injury was work-related in the sense I have described. In my view the fact that the Tribunal gave some consideration to this issue does not bespeak an error of law. Importantly, the Tribunal made plain that it had not arrived at a finding that the interlineation was added later than 27 March 2007. Thus it had not taken into account what the applicant claims to be an irrelevant consideration.

90    The applicant’s submissions in relation to a denial of procedural fairness canvass various questions which he says should have been put to Dr Sivasubramaniam if there was to be a challenge to the date when the interlineation was made. There can be no doubt that the time at which the interlineation was made was raised as a factual issue in the proceeding before the Tribunal. Dr Sivasubramaniam was questioned on it and her evidence recorded. It was equally open to the applicant to raise with Dr Sivasubramaniam the matters which, in submissions, he says should have been put to her on this issue. In the end result, the Tribunal made no operative finding in relation to it. I am unable to see how it can be said that there was a denial of procedural fairness to the applicant.

Ground 3

91    This ground raises a complaint concerning the adequacy of the Tribunal’s reasons for finding that Dr Ellis’s evidence was not “particularly helpful”.

92    It may be accepted that the failure of the Tribunal to provide a satisfactory statement of reasons may constitute an error of law that can vitiate the decision under appeal: Dornan v Riordan (1990) 24 FCR 564 at 567-568; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 614-615; Davies v Australian Securities Commission (1995) 131 ALR 295 at 317. In the last-mentioned case Hill J observed that, where there is conflicting evidence, it is incumbent upon the Tribunal at least to indicate its reasons for preferring the evidence of one witness from that of another.

93    The applicant submits that the Tribunal’s conclusion (at [106]) that it “did not find Dr Ellis’ evidence particularly helpful” leaves him in “a state of bewilderment as to whether or not that evidence was rejected or accepted or whether or not the evidence was given little or no weight”.

94    I do not accept this submission. The Tribunal did explain why it reached this conclusion. It stated that, in contrast to the other medical witnesses, Dr Ellis effectively discounted the possibility of an L4/5 rupture occurring spontaneously and rejected out of hand the possibility of jogging as a cause of that injury. The Tribunal balanced that particular part of Dr Ellis’s evidence against the body of evidence from the other medical specialists. It assessed that other body of evidence as being “more considered” in relation to “the range of possible causes of a disc protrusion”. It was, of course, a matter for the Tribunal to weigh the evidence before it. The point of present importance is that the Tribunal identified the extent to which it found Dr Ellis’s evidence to be not “particularly helpful” and the reason why that was so. By the expression not “particularly helpful” the Tribunal was plainly indicating that, to the extent that it had identified, it preferred the evidence of the other medical specialists. Apart from these particular matters, the Tribunal appears to have accepted Dr Ellis’s evidence as being in accord with that of the other medical specialists, namely that a lifting and twisting action is the most likely cause of an L4/5 rupture.

95    In the end result, all the Tribunal was doing was expressing a preference for the evidence of other medical specialists on the question of the possible causes of an L4/5 disc rupture and, specifically, whether jogging could lead to such a rupture. In my view the expression of the Tribunal’s reasons in this regard was adequate. There was no denial of procedural fairness by reason of a failure to give adequate reasons. Thus this ground discloses no error of law in the Tribunal’s decision.

Ground 4

96     This ground discloses no error of law in the Tribunal’s decision. The applicant’s complaint is that, in [99] of its reasons, the Tribunal referred to the fact that Dr McGill “found no evidence of radiculopathy in January 2010”. The applicant contends that the presence (or not) of radiculopathy is irrelevant to whether he had suffered an injury.

97    It is not necessary for me to engage with the factual accuracy of that proposition because it is perfectly clear that all the Tribunal was doing at [99] of its reasons was recounting an observation made by Dr McGill at the time he examined the applicant in January 2010. Apart from accurately summarising Dr McGill’s observation, that particular observation played no determinative role in the Tribunal’s decision at all. The Tribunal certainly did not proceed on the basis that without radiculopathy there could be no injury. The Tribunal simply did not make the error which the applicant says it made.

98    In any event, the Tribunal found (at [92]) that all the medical witnesses agreed that the applicant had a disc prolapse at the L4/5 level with associated radiculopathy. This finding is specifically relied upon by the applicant.

Ground 5

99    This ground discloses no error of law in the Tribunal’s decision. In substance this ground invites the Court, once again, to substitute, impermissibly, its own views on matters of fact for the findings of the Tribunal – in this instance, on whether it was plausible that the applicant suffered an injury on the morning of 23 March 2007 that caused him excruciating pain but did not mention that fact to his immediate supervisor, Mr Elliot. Once again, it was for the Tribunal to make its own assessment of the evidence. The fact that, at that time, the applicant did not mention to Mr Elliot the incident that he claims had occurred was plainly a relevant matter to be taken into account by the Tribunal in its fact-finding role.

Ground 6

100    This ground discloses no error of law in the Tribunal’s decision. As argued, this ground focused on the Tribunal’s finding that Mrs Baranski had dinner with the applicant on the Saturday evening after he claimed to have suffered his injury.

101    The applicant submits that, by referring to this fact, the Tribunal “paints a superficial gloss over what in fact occurred”. In this connection the applicant says that Mrs Baranski gave “very comprehensive and disturbing evidence that the applicant was in acute pain”. He also submits that, if there was any significance in the fact that the applicant was able to eat dinner with Mrs Baranski, “such a proposition was not fairly and squarely put to all of the doctors to discount the fact that this was behaviour inconsistent with the applicant having been injured by the lifting and twisting injury at work”.

102    In my view the applicant’s submission does not engage the actual use which the Tribunal made of Mrs Baranski’s evidence. The Tribunal accepted Mrs Baranski’s evidence that, on Friday evening when she visited him, the applicant answered the door and was obviously in pain, that he seemed unable to stand on his own and that he was having difficulty balancing himself while walking. The Tribunal also accepted Mrs Baranski’s evidence that, when she visited the applicant again on Saturday evening and had dinner with him, he was still evidently in pain. The significance of this evidence, however, was that it plainly contradicted the applicant’s evidence that he spent the entire weekend in bed, unable to move; that he did not eat or drink, or go to the toilet or get up for any reason; and that he could only just move his head. The weight to be given to Mrs Baranski’s contradictory evidence, which the Tribunal accepted, was a matter for it. The Tribunal found (at [114]) that the applicant was in pain on the evening of 23 March 2007 and over that weekend, but that he had exaggerated the extent of his pain. The Tribunal also found that Mrs Baranski’s evidence went to show the implausibility of the applicant’s evidence that he was unable to move all weekend and did not eat, drink or go to the toilet.

103    This ground of appeal also alleges that it was irrelevant for the Tribunal to take into account evidence that the applicant walked up and down his driveway when he got home on the evening of Friday 23 March 2007. It is difficult to understand this submission given that this was the applicant’s own evidence. The applicant did not seek to elaborate on why any error was involved in the Tribunal’s recording of this fact in its reasons.

Ground 7

104    The applicant identified this ground as “probably the most critical ground of appeal” and as “the heart” of the appeal.

105    In Telstra Corporation Limited v Bowden [2012] FCA 576 Murphy J said at [36]-[38]:

36    It is important to remember that the test of causation is one of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. In Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) noted:

... causation in tort does not differ from causation under the workers compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.

The judgment of Mason JA was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236.

37    In a passage approved by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 ("Law") per Aickin J at 647-648, with whom Gibbs, Stephen and Mason JJ agreed, the Full Court in Repatriation Commission v Law (1980) 47 FLR 57 said at 68:

It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause.

…

The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of".

What is required for an injury to arise out of employment is a causal connection which is less proximate than "caused by" or "results from", but not a connection which is fanciful or tenuous.

38    It is also important to remember that it is well settled that the purpose of the Act is remedial and is intended to give rights to employees. The appellate courts have repeatedly taken an approach to the provisions of the legislation which is generous to employees.

106    The applicant submits that the Tribunal’s conclusion (at [110]) that the applicant did not injure himself in the way he claimed (that is, by lifting and returning the toolbox to the cabinet on the morning of Friday 23 March 2007) was “inconsistent with common sense and common experience and resulted in a decision and a conclusion that was far-fetched and fanciful”. He submits that, as a result, the Court should infer that the Tribunal “clearly misapplied the correct test” of causation.

107    In support of this ground the applicant canvassed, in general terms, the evidence before the Tribunal but placed primary reliance on the medical evidence and the Tribunal’s own findings (at [92]) that the applicant had a disc prolapse at the L4/5 level with associated radiculopathy and (at [110]) that the weight of the medical evidence supports the view that a lifting and twisting action such as described by the applicant when lifting the toolbox is the most usual cause of a disc protrusion.

108    I have referred above to the Tribunal’s reasoning on this issue. It is plain that, as the respondent submits, the Tribunal gave careful and anxious consideration to all the evidence. It took as its starting point the weight of the medical evidence as to the most usual cause of a disc protrusion. It also reasoned, correctly in my view, that merely because the applicant had exaggerated the extent of his pain, it did not follow that he did not injure his back at work as he had claimed.

109    However, the Tribunal also reasoned that, on critical points, the applicant’s own evidence of how the injury occurred could not stand against the body of evidence given by the other witnesses. I will not repeat that evidence or the Tribunal’s specific findings in relation to it. Of course, it does not follow from the proposition that a lifting and twisting action is the most usual cause of a disc protrusion that this was the cause of the applicant’s disc protrusion or that, if it was, the lifting and twisting was the applicant’s return of the toolbox to the cabinet on the morning of Friday 23 March 2007.

110    The task for the Tribunal was to consider all of the evidence, not merely to make deductions based on the medical evidence alone. Having been satisfied on the totality of the evidence that the applicant did not injure himself as he had claimed, it was not incumbent on the Tribunal to find a cause for his injury. Indeed, the Tribunal did not do so. It did, however, have before it a competing explanation of how the applicant did injure himself. This was that the applicant injured himself by jogging, based on (a) statements made by the applicant himself to his colleagues; and (b) medical evidence that supported that explanation as a possible cause of his disc protrusion. The Tribunal was entitled to have regard to that possibility in its overall evaluation of whether the applicant’s injury arose out of or in the course of his employment. In short, the Tribunal did not have before it only one possible explanation for the cause of the applicant’s injury which it refused to accept.

111    I am not persuaded that the Tribunal did not approach its consideration of the question of causation in a common sense way. I am certainly not persuaded that its conclusion was far-fetched or fanciful or, indeed, one not grounded in common experience. In my view it was open to the Tribunal to conclude, on all the evidence, that the applicant did not injure himself as he had claimed. The applicant has not demonstrated any error of law in relation to this particular issue.

Ground 13

112    In his written submissions the applicant asked the Court to arrive at the conclusion that the Tribunal had imposed a standard of proof on the applicant that was higher than the balance of probabilities. In oral argument, however, the applicant accepted that it was inapposite to refer to the applicant bearing any onus of proof. The applicant referred to the observations of Woodward J in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356-357:

The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called "legal" and "evidential" aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue.

The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate" (AAT Act s 33(1)(c)).

Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent.

Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading "onus of proof", becomes a matter of choosing labels. It would probably be more convenient to avoid using that expression in cases such as the present.

There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419) make its own decision in place of the administrator's. The AAT itself, in a series of cases beginning with re Ladybird Children's Wear Pty Ltd (1976) 1 ALD 1, has taken the view that there is no presumption that the administrator's decision is correct. This is clearly the right approach to the matter.

113    The applicant drew particular attention to his Honour’s reference to the Tribunal reaching conclusions by invoking considerations of natural justice or common sense.

114    In the end, the applicant assimilated this ground of appeal with that raised in ground 7 dealing with the question of causation. The applicant submits that, as a matter of common sense, the Tribunal could only have come to the conclusion that his injury arose out of his employment and not from some other reason. This ground of appeal thus falls with ground 7.

Ground 14

115    The applicant submits that the Tribunal was faced with two competing theories, namely that he sustained an injury whilst putting the toolbox back into the cupboard at work or he sustained the injury “via natural causes or by walking/jogging”. The applicant submits that the preponderance of the evidence and the probabilities favoured the applicant’s version of a lifting and twisting injury and that no other hypothesis was available which had an equal degree of probability. He submits that, to have found otherwise, would offend the principles in Luxton v Vines (1952) 85 CLR 352.

116    The respondent submits that the Tribunal did not have to determine which of the two competing theories was more probable. It submits that the Tribunal’s task was to determine whether the applicant suffered an injury arising out of or in the course of his employment. Specifically, it had to decide whether it believed the applicant’s claim that he sustained an injury when he placed the toolbox in the cabinet. In the end result, the Tribunal concluded that it could not accept the applicant’s evidence.

117    Luxton v Vines was a case in which the plaintiff’s claim for damages in negligence was based on circumstantial evidence. The High Court, by majority (Dixon, Fullagar and Kitto JJ), reasoned that “many conjectures” could be put forward to explain the plaintiff’s injuries, but the fact that some of them implied negligence in the driver of a motor vehicle was not enough. There was no higher degree of probability for one cause than another. The cause of the plaintiff’s injuries lay only in conjecture.

118    Their Honours quoted from the unreported decision of the Court in Bradshaw v McEwans Pty Ltd, including the following:

In questions of this sort, when direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley [(1911) AC 674 at p 687]. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise …

119    In my view the decision in Luxton v Vines has no relevant application to the present matter. In substance this ground invites the Court to itself weigh the evidence before the Tribunal as to the cause of the applicant’s injury, with a view to supplanting the Tribunal’s decision.

120    In my view this ground of appeal falls with grounds 7 and 13.

Ground 16

121    The applicant contends that the Tribunal’s decision was so unreasonable that no reasonable decision-maker could have arrived at it: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR. In this connection the applicant also seeks to invoke the following observation by Dixon J in Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 with respect to the maker of an administrative decision:

… If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

122    As Crennan and Bell JJ noted in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [105], this observation was made with respect to a decision where there was no requirement for the giving of reasons. That is not the case here. The Tribunal must give reasons for its decision which include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based: s 43(2) and (2B) of the AAT Act.

123    In Norton v Comcare (2000) 31 AAR 488 Drummond J (at [20]) said:

In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, Mason CJ and Deane J considered that the Wednesbury formulation of unreasonableness contained in s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) extended to the case of a decision-maker who "makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course". This suggests that when a question of Wednesbury unreasonableness arises, it is not just the ultimate decision that can be examined for that particular flaw: attention can properly be focused also on the reasons given by the decision-maker for arriving at its decision. And if those reasons can be said to show that the decision has been reached in a manner devoid of plausible justification, it will be reviewable for Wednesbury unreasonableness, even though the material available to the decision-maker was such that the ultimate decision could have been justified on a basis different from that adopted by the decision-maker.

124     In his submissions the applicant pointed to the “compelling medical evidence”; the “overwhelming basis” on which the Tribunal should have drawn “the inference consistent with the applicant’s case”; the “illogicality” of there being any other cause for the injury; the substantial amount of compensation that was paid; the Tribunal’s “incorrect test for causation”; the “numerous considerations both irrelevant and relevant that plagued the reasons”; and the “so-called discrepancies or inconsistencies” in the applicant’s case that were “of no consequence whatsoever to the ultimate issue”. These matters reflect, in large measure, the matters canvassed by the applicant under the other grounds in his notice of appeal. When properly analysed, his submission under this ground is really no more than an emphatic way of contending that the Tribunal’s decision is factually wrong: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40].

125    In my view, when regard is had to the way in which the Tribunal went about its task in the present matter – as reflected in its recording of the evidence, its findings of fact and its reasons for making those findings – it cannot be said that its decision was so unreasonable that no reasonable decision-maker could have arrived at it. As I have found in relation to ground 7, it was open to the Tribunal to conclude, on all the evidence, that the applicant did not injure himself as he had claimed. It simply does not matter that another decision-maker might have come to a different view on the same facts.

Conclusion

126    The applicant has failed to establish that the Tribunal’s decision is vitiated by error of law. It follows that the appeal should be dismissed with costs.

Associate:

Dated:    31 August 2012