FEDERAL COURT OF AUSTRALIA

Comcare v Prater [2014] FCA 895

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1    Comcare appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) by which Comcare was held liable for an injury to Ms Prater’s shoulder which arose out of and in the course of her employment, on a casual basis, with COMCAR. The appeal turns on a correct understanding of the reasons for the decision of the Tribunal.

The Tribunal Decision

2    The Senior Member set out the relevant background, including Ms Prater’s account of the claimed injury which she said occurred on 20 November 2011 after carrying a number of cases for a senior Minister. The Tribunal recorded that Ms Prater did not lodge a formal notification of the injury until 14 August 2012. However, she did complete a driver’s report on 20 November 2011 at the end of her shift which stated ‘lifting [Minister’s] 6 bags in an out of boot I seemed to have caused some injury to my (L) wrist. He did not offer any assistance with lifting the bags’. The Tribunal gave an account of Ms Prater’s reasons for not lodging an incident report on that date.

3    The Tribunal then turned to the medical evidence. It referred to the cross-examination of Dr Stubbs, an orthopaedic surgeon. The Tribunal summarised his evidence in the following terms:

It was possible but not probable that repetitive activity was the cause of Ms Prater’s shoulder problems. That repetitive activity may have been repetitive arm lifting such as the repeated lifting of the heavy boxes in November 2011, and this was the most likely cause in the absence of any other source of the pain.

4    The Tribunal recorded the evidence of Dr Mirpuri, who first saw Ms Prater in February 2012. Dr Mirpuri gave evidence as to Ms Prater’s description of an injury to her left shoulder after lifting heavy bags in November 2011 and the fact that she had said that it was not until February that it had started to worry her. Dr Mirpuri said ‘it is more likely that the incident in November has caused her shoulder pain’.

5    The Tribunal also recorded the evidence of Dr Ann Harvey, a radiologist who reported on an x-ray taken of Ms Prater’s shoulder on 20 February 2012, and a subsequent ultrasound also performed on 20 February 2012, noting a ‘mild subarticular sclerosis…at the left sternoclavicular joint’, the reason for which was ‘unclear’. The Tribunal also recorded a report of an arthogram of Ms Prater’s left shoulder performed on 25 July 2012 which detected ‘a partial thickness articular surface tear of SST [skin and soft tissue]’.

6    The Tribunal then recorded Ms Prater’s evidence in some detail.

7    The Tribunal identified the issues, relevant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) as:

    Whether Ms Prater’s left shoulder injury arose out of or in the course of her employment (s 5A(1));

    Whether Comcare is liable to pay compensation to Ms Prater for her injury (s 14);

    Whether Comcare’s liability is negated because Ms Prater did not notify Comcare of her injury ‘as soon as practicable’ (s 53).

8    The Tribunal accepted the diagnosis that Ms Prater suffered from a partial tear in the supraspinatus tendon and said that ‘the issue is what caused that partial tear’. The Tribunal addressed the following:

    Ms Prater’s claim that her injury occurred on the evening of 20 November 2011;

    Comcare’s allegation that the shoulder injury was not sustained while working for the agency on that date, or in the manner alleged, or at all;

    Her employment with COMCAR and COMCAR’s Medical Assessment form, together with the core requirement for lifting bags, including into and out of boots of vehicles as part of her duties;

    The nature of the senior Minister’s bags on 20 November 2011, being between six and eight heavy bags;

    The lack of clarity in the evidence of the weight of each individual bag; and

    The history of Ms Prater’s complaints; in particular that she did not complain to Dr Mirpuri about pain in her shoulder until 13 February 2012, together with her explanation for that delay.

9    The Tribunal accepted that the weight of the bags was unusual, causing Ms Prater to seek out a trolley to assist with moving them and turned to whether lifting the bags ‘could have caused Ms Prater’s shoulder injury’.

10    The Tribunal observed at [38] that it needed to be satisfied that there were no other possible causes of the partial tear to Ms Prater’s shoulder. In that regard the Tribunal noted:

    Ms Prater’s previous injuries to her left wrist and lower right leg, together generally with her medical history between November 2011 and February 2012 and any complaints;

    Other possible causes were eliminated because she did not play sport and her duties at the residential care facility at which she worked were administrative and did not involve lifting or other repetitive activities that might affect her left arm and shoulder;

    Her car, used for driving to and from the residential care facility was automatic and did not involve frequent use of her hand brake;

    Her activity as ‘an Avon lady’ in her spare time only required distribution of booklets and ordering of products for customers; not being physically demanding activities;

    The absence of evidence that Ms Prater injured her shoulder from her activities around horses, which did not include riding; and

    Her doctor’s evidence that he had no knowledge of any ‘recent fall’ or ‘healing fracture’.

11    In that context, in a passage criticised by Comcare, the Tribunal referred to Dr Mirpuri’s evidence as follows:

He did suggest in evidence that he could not indicate how likely it was that lifting heavy bags could cause such a tear. However, no other explanation has been proffered for the initial injury to Ms Prater’s shoulder.

12    I interpolate to observe that that sentence, seen in the context of the Tribunal’s examination of the available evidence and the consideration of other possible causes, amounts to a notation that other likely causes that could have arisen from her history had been excluded and, while her doctor could not say how likely it was that lifting heavy bags could cause a tear, no other explanation has been proffered. That, in context, does not relate to the absence of an explanation from Comcare but an absence of an alternative explanation for the injury from the totality of the evidence, which included Ms Prater’s evidence and that of her doctor.

13    In the next paragraph, again in the context of determining the most likely cause of the tear, the Tribunal noted that the history of activities during the two and a half months until mid-February 2012 ‘indicates a form of “immobilisation” of her left arm and shoulder, at least from regular activities which might affect her left shoulder’. The Tribunal then said ‘that does not eliminate the possibility that it was the lifting of the bags on 20 November 2011 which initially caused the supraspinatus tear to Ms Prater’s left wrist and shoulder’.

14    Again, I note that, in context, that was part of the Tribunal’s detailed consideration in answer to the question it posed in [37], being the question whether the lifting of the bags could have caused the shoulder injury. The Tribunal’s reasoning process was to consider all other available causes and to note that the alleged reason, being the lifting of the bags in November, could still not be eliminated as a possibility. This was not to misstate the test to be applied to the ultimate conclusion, but was part of the Tribunal’s reasoning in seeking to eliminate possible causes that had been raised and noting that, despite evidence and acceptance of the fact that the shoulder had recovered to an extent by 5 February 2012, the history of Ms Prater’s activities in that intervening time still did not eliminate the November event as a possible cause.

15    The Tribunal then discussed the evidence suggesting a continuing injury after Ms Prater recommenced working for COMCAR, noting that this suggested that it was the COMCAR driving and not other causes which exacerbated her shoulder problem. The Tribunal then expressed itself satisfied that it was her renewed work as a COMCAR driver which was the cause of the recurrence of pain in her shoulder. In that regard, the Tribunal said that it was ‘also significant’ that Ms Prater did not consult her doctor until 13 February 2012 when she had recommenced working for COMCAR for five days and had engaged in activities over that time. Her doctor recommended a course of treatment that took place between 13 February 2012 and 3 July 2012, at which time he referred Ms Prater for an arthogram to identify the cause of the continuing shoulder problem.

16    Having set out in detail Ms Prater’s history, including her history of employment, external activities and her medical history, in the context of seeking to ascertain the cause of the tear to her shoulder, the Tribunal said at [47]:

The Tribunal finds that the lack of any obvious cause for her condition from Ms Prater’s administrative position at the residential care centre, her recording of a twinge in her left wrist on 20 November 2011 which she said radiated into her arm and shoulder following Ms Prater’s lifting of heavy bags on that occasion, the absence of any other identified causes, suggest that the initial partial tear of Ms Prater’s shoulder did arise out of and in the course of her employment.

17    Again, in context, the Tribunal was not casting any blame on Comcare for failing to identify another cause. It looked to the evidence available and considered it in some detail. The Tribunal did not assume that Ms Prater was correct in attributing her injury to the lifting of the Minister’s bags. It investigated and considered any other possible cause and concluded that no other activity could have caused the injury. In context, the reference to the absence of another cause was simply the setting out of the logical steps taken by the Tribunal in coming to the conclusion that it did.

The Grounds of Appeal

18    The applicant initially set out six questions of law raised by its appeal. It characterised those questions as:

(a)    Did the Tribunal fail to state and apply the correct standard of proof or ask the correct questions?

(b)    Did the Tribunal fail to consider or have regard to a submission of substance or a submission that would have affected the outcome?

(c)    Did the Tribunal fail to provide lawful or sufficient reasons in accordance with its obligation under Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)?

(d)    Did the Tribunal fail to take into account relevant considerations in making its decision?

(e)    Did the Tribunal make findings of fact for which there was no or insufficient evidence and which affected the reasoning for its decision?

(f)    Did the Tribunal take into account irrelevant considerations in making its decision?

19    At the hearing, Comcare acknowledged that the first two questions comprised the essence of its case, and accepted that the contention that the Tribunal failed to take into account relevant considerations in making its decision (question (d) above) relied upon the same matters of delay and credit that arise under (a) and (b) and so did not need to be dealt with separately. The remaining grounds were not pressed.

(a) Did the Tribunal fail to state and apply the correct standard of proof or ask the correct questions?

20    The causal connection between Ms Prater’s injury and her employment had to be established on the balance of probabilities and not left in the area of possibility or conjecture. The Tribunal was required to attain a state of satisfaction that enabled it positively to conclude, on the available evidence, that it was probable that the claimed injury to Ms Prater’s left shoulder was sustained as the result of the claimed incident on 20 November 2011. It is in this context that Comcare raises the Tribunal’s references to the absence of an alternative explanation for the shoulder injury.

21    Comcare points to various references in the Tribunal’s reasons to the question being whether the Minister’s bags ‘could have caused’ the shoulder injury; whether it needed to be satisfied that there were no other possible causes of the partial tear to the shoulder; and that one particular fact did not ‘eliminate the possibility’ that the lifting of the bags on 20 November 2011 caused the tear to the left wrist and shoulder. Comcare submits that the Tribunal should only have addressed whether there was sufficient evidence to support the alleged cause.

22    Comcare asserts that the Tribunal effectively required Comcare to provide alternative explanations for the causation and that Comcare was required to disprove Ms Prater’s case. In effect, Comcare submits that the Tribunal approached the evidence by asking itself whether there were other or alternative explanations provided by Comcare and that the Tribunal did not then address the reason why Comcare did not adduce evidence or offer an alternative explanation. That reason was the delay between the alleged injury and the reporting of it.

23    As I read the Tribunal’s reasons, it assessed the evidence before it and expressed itself satisfied with the evidence and the case made by Ms Prater, which included assessment of the medical evidence. In that context, the reference to the absence of an alternative explanation was merely noting that there was no other available explanation, rather than a reliance upon that fact positively to reject the alternative case made by Comcare.

24    The Tribunal’s reasoning process is set out above. In assessing the whole of the evidence, the Tribunal did not require Comcare to disprove Ms Prater’s case. The Tribunal did look to see whether another cause for the injury could be identified but that was only part of the overall fact finding process that it adopted. The Tribunal did not merely speculate on the cause of the injury. It set out all of the available evidence and assessed that evidence. It accepted that the lifting of the bags was one possible cause and then looked to see whether there were any other causes likely or more likely to have caused the injury. It rejected each of them. Weighing the evidence, the Tribunal came to the conclusion that the events of 2011 reasonably could have, and in fact did, cause the injury to Ms Prater’s shoulder; that being consistent with her employment-related, personal and medical history.

25    Further, considering the whole of the Tribunal’s reasons including its consideration of the issue arising under s 53 of the Act, it is apparent that the Tribunal considered the question on the balance of probabilities, not merely on possibilities, and made findings of fact accordingly, taking into account the prejudice to Comcare by reason of the delay in reporting.

26    The answer to question (a) is “No”.

(b) Did the Tribunal fail to consider or have regard to a submission of substance or a submission that would have affected the outcome?

27    There is no dispute that the Tribunal was required to address and resolve a submission of substance advanced before it for resolution (Australian Postal Corporation v Hughes [2009] FCA 1057 at [60])) and was obliged to refer to a submission of substance that affected its decision (Australian Postal Corporation v Sellick (2008) 101 ALDF 245 at [35]). Comcare submits that the Tribunal erred or, in the alternative, that it was denied procedural fairness in the failure on the part of the Tribunal to consider:

    That Comcare was prejudiced by Ms Prater’s failure to report the alleged injury as soon as practicable after she became aware of it; and

    Comcare’s submissions as to Ms Prater’s credit, such that her evidence should have been disregarded or given less weight.

28    Each of these is relied upon as a submission that was ‘a submission of substance’ or ‘a submission that would have affected the outcome’. Further, Comcare says, the Tribunal was obliged by s 53 of the Act to provide adequate reasons and failed to provide adequate reasons as to these matters.

29    Comcare acknowledges that the Tribunal did refer to the delay in reporting in its consideration of whether Ms Prater’s claim should be dismissed under s 53 of the Act because Ms Prater did not report the injury ‘as soon as practicable’. In that context, the Tribunal accepted that untoward delay creates evidential difficulties for both parties but observed that it was not until July 2012 that an accurate diagnosis of the condition was made, that being due to a combination of factors. The Tribunal did address the issue of failure to report the injury, by weighing the reasonableness of Ms Prater’s hope that the injury would get better and the prejudice and disadvantages to the parties arising from the delay. In the circumstances, for the reasons that it gave, the Tribunal concluded that the delay in notification was not unreasonable and that once the condition was properly diagnosed, Ms Prater acted promptly. The Tribunal accepted the reasons for the delay as understandable.

30    At the Tribunal hearing, Comcare pointed out the disadvantages that it suffered by reason of the delay, including the absence of contemporaneous medical evidence and its inability to find other witnesses who may have witnessed the incident.

31    Comcare points out that the relevant matter by which it was prejudiced was Ms Prater’s delay in giving notice of an injury. Comcare says that Ms Prater’s reliance on a driver’s report on the day of the alleged injury, where she stated that she caused some injury to her left wrist, was not relevant or reasonable in the circumstances. It says that her explanation, that she made a decision not to give notice or to make a workers’ compensation claim because she could not afford to cease working, was not credible and should not have been relied upon by the Tribunal, in particular because it did not counteract the prejudice suffered by Comcare in meeting the allegations.

32    Comcare emphasises that the submission was of significance because, it says, the Tribunal determined that it was Comcare’s onus to provide alternative explanations and that, as it characterises the Tribunal’s reasons, it was a finding that there was an absence of other identified causes that allowed it to accept Ms Prater’s claim. Comcare then submits that as the lack of an alternate explanation was a major reason for the Tribunal’s decision, there was an obligation on the part of the Tribunal to consider its submissions on delay and prejudice in the context of that finding.

33    Again, as I read the Tribunal’s reasons, it did not attribute any blame to Comcare for a failure to adduce evidence of an alternative explanation. The Tribunal did note the effect of the delay in reporting. It was simply a fact, arising in part because of the chronology which the Tribunal found to be not unreasonable in the context of s 53 of the Act. The Tribunal did deal with this aspect under s 53 and that finding was part of the Tribunal’s reasoning process for all purposes.

34    The Tribunal recorded the various factors that existed at the time, including Ms Prater’s belief, which it described as ‘partly justified’ that the condition would resolve with rest. Noting that it was not until February 2012 with the resumption of driving that it became apparent that this had not occurred (at [51]). Once the Tribunal came to the conclusion that the delay in notification was not unreasonable, that conclusion clearly affected the whole of the Tribunal’s reasoning. The Tribunal did not specifically refer to prejudice caused to Comcare by the delay but, again, carefully considered each aspect of the evidence for itself in order to determine whether or not Ms Prater’s assertions were justified.

35    Having made the decision that the delay was not unreasonable, the Tribunal took the course of critically evaluating the evidence. In the circumstance of the finding under s 53, the alternative that seems to be posited by Comcare is that by reason of the delay alone, the claim should have been dismissed. That would not have been the appropriate course.

36    It is not unusual for the finder of fact to have to make findings in the absence of full and complete evidence as to each aspect of the case. In Ms Prater’s case, the Tribunal did not attribute the absence of evidence to the consequence of delay so much as to the nature of the injury, the effects of the injury and Ms Prater’s subsequent activities.

37    Once it is appreciated that the Tribunal was not in any way blaming Comcare for a failure to provide an alternative explanation, Comcare’s submissions as to the consequences arising from its inability to provide an alternative explanation by reason of that delay are greatly diminished.

38    As to Ms Prater’s credibility, before the Tribunal, Comcare submitted at some length that Ms Prater lacked credibility and that her evidence should be discounted accordingly. It relied in part upon what it said was inconsistent evidence about the making false or inconsistent statements to her employer. Comcare submits that this needed to be addressed by the Tribunal as it went to causation and would have affected the outcome. At the very least, Comcare says, the Tribunal should have shown in its reasons that it considered this issue and that it failed to do so. Not only is this said to be a failure to consider a submission of substance but it is also relied upon as a failure to provide lawful or sufficient reasons in accordance with s 43(2B) of the AAT Act.

39    I accept Ms Prater’s submission that her credibility was clearly assessed during the process of weighing all of the evidence. For example, the Tribunal addressed Ms Prater’s description of what happened on 20 November 2011 and noted that the evidence was unclear as to the weight of each bag. In that regard the Tribunal referred to the evidence of another witness, even though that witness said that he was only guessing.

40    It is the case that there was no separate section of the reasons dealing with Ms Prater’s credibility. However, it is clear from the reasons that the Tribunal did not simply accept everything that Ms Prater said and that it analysed her evidence in the light of the evidence from other witnesses and the objective evidence of the chronology and the medical evidence. The Tribunal clearly relied upon documentary material and corroborative evidence from other witnesses. In other words, the Tribunal did not consider Ms Prater’s evidence uncritically or unquestioningly. As such, it is clear that the Tribunal weighed Ms Prater’s evidence and her credibility as against the other evidence before it

41    At the hearing, counsel for Comcare accepted that it could be said that the Tribunal implicitly dealt with issues of credit but says that it needed to refer to the issue in detail and to give reasons for conclusions, as it was of sufficient importance and went to the heart of Ms Prater’s credit in light of conflicting versions of the medical evidence. I do not accept that it was necessary for the Tribunal to do so. The Tribunal gave detailed consideration to the inconsistencies in the evidence and to the matters that either contradicted Ms Prater’s evidence or called it into question. Each of those factual matters was dealt with, analysed and determined.

42    A reading of the Tribunal’s reasons which are detailed and logical demonstrates that despite the lack of specific reference to Ms Prater’s credit, the Tribunal viewed the evidence objectively, took conflicting evidence into account including matters that would go to credit, analysed them, and gave a clear explanation of the reasons for coming to each conclusion after weighing the evidence. The Tribunal was faced with consequences of delay in reporting the injury. It considered the effect of this delay on Ms Prater’s version of events and on the proper analysis of her alleged injuries. It took each of those matters into account in making those conclusions and explained each such conclusion.

43    It is apparent that the Tribunal did consider matters, such as Ms Prater’s delay in filing a report or making a complaint about her shoulder, which went to her credit, and resolved those issues to its satisfaction. Accordingly, it is plain that had the Tribunal specifically addressed Ms Prater’s credit in its reasons, it would have arrived at the same conclusion.

44    The answer to question (b) is “No”.

Conclusion

45    It follows that the application should be dismissed with costs.

Associate:

Dated:    22 August 2014