FEDERAL COURT OF AUSTRALIA

Howes v Comcare [2016] FCA 1521

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    This is an appeal from a decision of a Senior Member of the Administrative Appeals Tribunal (the AAT) (see Roseanne Howes v Comcare [2016] AATA 448). The appeal is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which provides that a party to a proceeding before the Tribunal may appeal to this Court “on a question of law, from any decision of the Tribunal in that proceeding”.

2    The appeal relates to the AAT’s decision dated 30 June 2016 in which the AAT affirmed Comcare’s decision dated 22 April 2013 that it was not liable to pay compensation to the applicant under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The compensation related to the cost of surgery to reduce the size of the applicant’s breasts.

3    This is not the first time that the applicant has challenged the Tribunal’s decision on this issue. In Howes v Comcare [2015] FCA 1078 (Howes (Fed Court 1)), in an appeal which was also brought under s 44 of the AAT Act, the Court set aside the AAT’s decision which affirmed Comcare’s decision to refuse to reimburse the applicant for the cost of the breast reduction surgery. It was held then that the AAT failed to address the case as put by the applicant in respect of the definition of “medical treatment” in s 4 of the SRC Act. The AAT’s original decision was set aside and the application for review was remitted for reconsideration according to law.

4    The application for review was reconsidered by a different member of the AAT who, as noted above, again dismissed the application. Before summarising the AAT’s reasons for this second decision, it is convenient to set out the background matters (which were largely undisputed) and the relevant legislative provisions.

Summary of background matters

5    After working with the Australian Taxation Office (ATO) for approximately 18 months, which work required the applicant to use a computer constantly, in April 2005 she experienced intermittent pain in her neck. By July 2005 the applicant was experiencing constant pain in her neck and right shoulder. Comcare accepted liability for the injury under s 14 of the SRC Act in respect of what was described as “intervertebral disc disorder – cervical region”, “sprain of shoulder and upper arm (right)”; “subacromial bursitis (right)” and “erosion of teeth” (which was caused by the applicant grinding her teeth at night in response to her pain).

6    It is convenient to summarise other relevant background facts by reference to the summary set out in Howes (Fed Court 1) at [3]-[9], while noting that the applicant contests the accuracy of the highlighted phrases in [6] and [7]:

3    The applicant claimed that the weight of her breasts increased the pain in her neck and shoulder and that she had also put on weight because of the medication she was taking for her pain. In November 2006, she consulted a plastic surgeon, Dr Ferguson about the possibility of breast reduction for the relief of the pain. In March 2007, she consulted an orthopaedic surgeon, Dr Coyle, who suggested that breast reduction might help the pain.

4    Throughout 2006-2007 the applicant undertook various treatments including for weight loss. She also consulted another orthopaedic surgeon (Dr Damiani) in August 2007. She underwent a shoulder operation with Dr Damiani on 25 March 2008, but this operation did not help her pain. From late 2005 until at least November 2008, the applicant was treated by a rehabilitation specialist, Dr May, who prescribed oral pain medication, massage, hydrotherapy, physiotherapy, a home exercise program and guided injections around the C6 nerve root.

5    Dr May ultimately referred the applicant to a neurosurgeon, Dr Pell, in respect of her neck pain. In December 2008 Dr Pell diagnosed that Ms Howes had a C5-C6 disc prolapse. He advised that she undergo neck surgery. The applicant was reluctant to do so; consequently he recommended further nerve root injections.

6    In July 2009, the applicant's general practitioner (Dr Donaghy) referred her to Dr Milovic, a plastic surgeon, for consideration of a breast reduction for pain relief. The applicant claimed that she was advised by Dr Milovic that a breast reduction might assist in the reduction of her pain. In August 2009, the applicant was referred again to Dr Damiani. She was also referred for a second opinion to a plastic surgeon, Dr Taylor, who in August 2009 advised her that a breast reduction might assist in pain reduction.

7    On 23 October 2009, at the ATO's request, the applicant attended a consultant, Dr Macauley (a consultant rheumatologist). The applicant claimed that she asked Dr Macauley whether a breast reduction would be beneficial and that she was told that a breast reduction might assist in pain reduction and that she should “consider a breast reduction as a matter of urgency”.

8    On 2 November 2009, the applicant underwent breast reduction and abdominoplasty surgery, which was carried out by Dr Milovic.

9    In 2012, the applicant claimed reimbursement under s 16 of the SRC Act of the cost of the breast reduction ($19,956.80, comprising fees charged by or relating to the surgeon, the anaesthetist, pathology and the hospital), which was refused by Comcare on 22 August 2012. On 25 January 2013, a reconsideration was requested. The reconsideration was concluded on 22 April 2013. It resulted in an adverse decision. The applicant sought a review by the AAT of that reviewable decision.

Relevant legislative provisions summarised

7    Section 16 of the SRC Act relevantly provided:

16    Compensation in respect of medical expenses etc.

(1)    Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

8    “Medical treatment” was defined in s 4(1) of the SRC Act to mean, inter alia:

(a)    medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b)    therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

…

There is no statutory definition of the phrase “surgical treatment”. There is, however, a definition of “therapeutic treatment” later in s 4 which provided:

therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating an injury.

The term “injury” was defined in s 5A as follows:

5A Definition of injury

(1)    In this Act:

injury means:

(a)    a disease suffered by an employee; or

(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; or

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

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

(2)    For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

(a)    a reasonable appraisal of the employee’s performance;

(b)    a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(c)    a reasonable suspension action in respect of the employee’s employment;

(d)    a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

(e)    anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

(f)    anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

AAT’s reasons summarised

9    The AAT found that Comcare was not liable under s 16 of the SRC Act to pay compensation for the costs associated with the applicant’s surgery notwithstanding that it accepted that the applicant had been advised by several doctors that breast reduction surgery might reduce her pain. It also accepted that, after the surgery, the applicant continued to experience the symptoms of her injuries, including pain, though to a lesser degree. It found, however, that, despite the medical advice she was given before the breast reduction surgery, that surgery could not have affected the symptoms of her accepted injuries and, therefore, there was no liability under s 16.

10    The AAT adopted the summary of the background facts from Howes (Fed Court 1) which included a summary of the views of various medical practitioners. The AAT identified the following three issues as relevant to the question whether Comcare was liable under s 16 to compensate the applicant for the costs associated with the breast reduction surgery:

(a)    whether the surgery was “medical treatment” as defined in the SRC Act;

(b)    whether the surgery was obtained “in relation to” the compensable injury; and

(c)    whether the surgery was treatment that it was reasonable for the applicant to obtain in the circumstances.

11    On the first of those issues, the AAT rejected Comcare’s submission that “surgical treatment” for the purposes of paragraph (a) of the definition of “medical treatment” in s 4 of the SRC Act must treat the relevant injury or, at least, the symptoms of that injury. The AAT found that there did not have to be a relationship between any surgical treatment and the particular injury before that treatment could amount to “medical treatment”. It accepted, however, that s 16 required that there be a connection between the medical treatment and an injury, because Comcare’s liability under s 16 was for the cost of medical treatment which was obtained “in relation to” an injury.

12    The AAT concluded at [12] that, even if the breast reduction surgery was not obtained in relation to the applicant’s compensable injuries (and did no more than treat the size of her breasts), it was surgical treatment by a legally qualified medical practitioner and, therefore, fell within the definition in (a) of “medical treatment” in s 4(1).

13    The second issue was whether the surgery was obtained “in relation to” the applicant’s compensable injuries. The applicant’s compensable injuries are set out in [5] above. Comcare contended that the breast reduction surgery was not medical treatment obtained in relation to any of these injuries.

14    The AAT summarised the medical advice given to the applicant by various medical practitioners, including Dr Nicholas Burke (a consultant occupational physician); Dr David Maxwell (an orthopaedic and spinal surgeon); Dr Felicity Donaghy (general practitioner); Dr Alan Ferguson (plastic surgeon), Dr Vladimir Milovic (who performed the breast reduction surgery), Dr Alistair Taylor (plastic surgeon) and Dr David Macauley (consultant rheumatologist).

15    The AAT noted at [21] Dr Maxwell’s evidence in the previous AAT proceeding, where he prepared two reports for Comcare for the purpose of the proceeding and was also cross-examined. The Senior Member summarised Dr Maxwell’s evidence in [21]:

Dr Maxwell's evidence was that breast reduction surgery would not have affected Ms Howes's neck and radicular pain. This is because the weight of the breasts is borne by the thoracic spine and not by the cervical spine. Reducing the weight of the breasts, he said, “wouldn't influence the diameter of the intervertebral foramina, which is the problem with radiculopathy”. He was of the view that even those of Ms Howes's symptoms that were not necessarily radicular (for example, neck pain and headaches) would not be affected by breast reduction surgery. Breast reduction surgery, he said, would have no impact or only limited impact on a person's posture, so that it would not affect non-radicular pain. Comcare says that, on this issue, I should prefer the evidence of Dr Maxwell, an orthopaedic and spinal surgeon, to that of plastic surgeons, a rheumatologist and a GP.

16    After noting in [22] of the reasons for decision the applicant’s oral evidence that, before the surgery, she was also advised by Dr William Coyle (orthopaedic surgeon) that breast reduction surgery might reduce her pain, the AAT Senior Member found that;

(a)    there was no evidence corroborating these assertions; and

(b)    there was no mention of breast reduction surgery in the report dated 12 March 2007 which was prepared by Dr Coyle after he examined the applicant on that day.

17    In relation to the AAT’s finding that there was no mention of breast reduction surgery in Dr Coyle’s report, the AAT added a footnote in the following terms:

12.    The Federal Court, in its summary of the background facts in this review (quoted at [4] above), refers to this consultation and says Dr Coyle “suggested that breast reduction might help the pain”: Howes v Comcare [2015] FCA 1078 at [3] per Griffiths J. Having considered that summary, and other references to Dr Coyle in the Federal Court's reasons for decision, I do not take the Court to have made a finding of fact that Dr Coyle advised Ms Howes about breast reduction surgery. I think the Court was noting that Ms Howes claimed that Dr Coyle gave her that advice. In [23] below, I find that he did not.

18    The Senior Member said at [23] that, having regard to all the evidence, including the transcript of the first AAT hearing, he made the following findings on the balance of probabilities (footnotes omitted):

•    Drs Ferguson, Milovic, Taylor, Macauley and Donaghy each advised Ms Howes that breast reduction surgery might reduce her pain.

•    Dr Coyle did not advise Ms Howes that breast reduction surgery might reduce her pain. I have made this finding having particular regard to the fact that his report canvasses surgical treatment, but does not mention breast reduction surgery.

•    The symptoms that Ms Howes reported and exhibited before the surgery, including her pain, were predominantly radicular.

•    Breast reduction surgery could not have affected the symptoms of Ms Howes's compensable injuries.

•    In relation to the radicular symptoms, this is because such surgery would not affect the diameter of the intervertebral foramina.

•    In relation to the non-radicular symptoms, this is because the surgery would not have sufficient impact on her posture.

I have made this finding:

•    noting that, about a month after the surgery, Ms Howes reported that she continued to experience the symptoms, albeit “to a much lesser degree”; and

•    noting Dr Maxwell's evidence that “[t]hese symptoms can resolve spontaneously and improve or become worse for no particular reason”.

In making the third and fourth findings above, I prefer the opinion of Dr Maxwell (an orthopaedic and spinal surgeon) to the opinions of Drs Ferguson, Milovic and Taylor (plastic surgeons), Dr Macauley (a rheumatologist) and Dr Donaghy (a GP).

19    In the light of these findings, the Senior Member concluded that the breast reduction surgery was not medical treatment obtained in relation to the applicant’s compensable injuries.

20    The AAT then addressed the question of the applicant’s reasons for having the surgery. It noted in [25] the finding by the AAT as previously constituted that the surgery was “primarily for cosmetic reasons” and not “for the primary purpose of treating her compensable injuries”. This finding was made with reference to the question whether the surgery was “therapeutic treatment” for the purposes of paragraph (b) of the definition of “medical treatment”. On the remitter, however, the Senior Member said that he did not have to consider paragraph (b) because of its conclusion concerning paragraph (a), with the consequence that there was no need to make a finding about the applicant’s reasons for having the surgery. Nevertheless, the Tribunal referred to a detailed medical report dated 8 December 2009 by Dr Burke. In that report Dr Burke stated that recent plastic surgery performed by Dr Milovic was the reason why the applicant had not been able to undertake hydrotherapy. Although the applicant gave evidence that she would have told Dr Burke that she had the surgery “for treatment for [her] neck condition” because she saw him so soon after the surgery, the AAT noted that there was no mention of that in Dr Burke’s report.

21    The AAT concluded in [28] that it did not think that there was sufficient evidence to make a finding about the applicant’s reasons for having the surgery (including by reason of the fact that Dr Burke had not been called as a witness) but, in any event, there was no need to make any such finding because of the finding that the surgery could not have affected the symptoms of her compensable injuries. The AAT Senior Member concluded at [28] that the surgery was not medical treatment obtained in relation to her compensable injuries, “regardless of whether she (or, indeed, any of the doctors that she consulted before the surgery) thought that it was”.

22    On the issue as to whether the surgery treatment was reasonable for the applicant to obtain, the AAT said that it did not have to determine this issue having regard to its finding that the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries.

The appeal to this Court

23    The notice of appeal dated 28 July 2016 identified the following three questions of law:

1.    Whether the Tribunal misconstrued section 16 of the Safety Rehabilitation and Compensation Act 1988 ("SRCA") in holding that surgery undertaken on the advice of treating medical practitioners for the express purpose of ameliorating pain associated with an accepted injury, is not surgery undertaken in ‘relation to the injury' as those words appear in section 16 of the SRCA.

2.    Whether the Tribunal misconstrued section 16 of the Safety Rehabilitation and Compensation Act 1988 (SRCA) in holding that the words 'in relation to the injury' as they appear in section 16 of the SRCA bear no purposive connotation, whether the purpose be that of the patient or medical practitioners or both.

3.    Whether the decision of the Tribunal is unreasonable in the legal sense, due to:

(a)    the inconsistent manner in which it address the evidence of Dr Coyle's opinion on the utility of the surgery for relief of some of the pain emanating from the accepted injury;

(b)    the impermissible drawing of inferences of the Jones v Dunkel kind in relation to the evidence of Dr Coyle;

(c)    preferring the evidence of Dr Maxwell over that of all the other medical practitioners in circumstances where Dr Maxwell's evidence was that he had no personal experience in the use of surgery breast reduction for pain relief;

24    The following 13 “grounds of appeal” were set out in the notice of appeal (without alteration):

1.    The Applicant has an accepted injury to her neck, shoulder and right upper arm that manifests in pain in these same regions. The injury occurred in 2005.

2.    The Applicant had large breasts. In November 2009, on the advice of her treating medical practitioners she underwent a breast reduction operation for the purposes of relieving some of the pain emanating from the compensable injuries.

3.    The Applicant lodged a claim with the Respondent for reimbursement of the costs of the surgery under section 16 of the SRCA and time off work under section 19 of the SRCA. The Respondent denied the claim. The Applicant sought review by the Tribunal.

4.    In evidence before the Tribunal the Applicant, her general practitioner (Dr Donaghy), a plastic surgeon (Dr Ferguson), a rheumatologist (Dr Macaulay), a plastic surgeon (Dr Taylor) and the treating plastic surgeon (Dr Milovic) each prospectively recommended or supported the surgery for the potential relief of pain from the compensable injury.

5.    The Applicant's evidence was that her orthopaedic surgeon (Dr Coyle) orally prospectively supported the surgery for pain relief albeit that his report in evidence did not address the issue.

6.    The only evidence to the effect that the surgery would not assist the pain relief from the compensable injury was that of Dr Maxwell who provided a medico-legal report only some four years after the surgery. Dr Maxwell opined that the breast reduction could not have assisted with the symptoms of the compensable injury due to the nature and origin of the pain.

7.    The Tribunal preferred the evidence of Dr Maxwell over that of the treating doctors and other medical practitioners that testified.

8.    The Tribunal construed with the words 'in relation to the injury' as they appear in section 16 of the SRCA to connote an objective test of some form, divorced from the actual purpose or intentions of the patient and the medical practitioners concerned. On the basis of the retrospective view of Dr Maxwell, the Tribunal held that the surgery was not 'in relation to the injury' irrespective of its purpose or intent of those involved, if it is objectively and belatedly established that the surgery could not have assisted with pain relief.

9.    At [4] the Tribunal noted that it adopted the findings of fact summarised by the Federal Court in Howes v Comcare [2015] FCA 1078. This summary included a finding that Dr Coyle suggested to the Applicant that the breast reduction may assist in pain relief. At [22][23] the Tribunal then resiled from this finding in relation to Dr Coyle and said that there is no evidence of Dr Coyle expressing this view other than the Applicant's testimony on the point. The Tribunal then finds that Dr Coyle did not express this view because it is not in his earlier written report and he was not called to give evidence.

10.    The Tribunal has erred in taking the view that the sworn testimony of the Applicant on the issue of Dr Coyle is not evidence of what she heard and in failing to set out its reasons for this finding.

11.    At all material times the Applicant had put to the Respondent her account of Dr Coyle's statement to her and the Respondent did not seek to call Dr Coyle to rebut the Applicant's evidence on the point.

12.    The Tribunal's adverse inference arising from the failure of the Applicant to call Dr Coyle is a misapplication of the logic in Jones v Dunkel. If any logical inference was to be drawn from the absence of Dr Coyle it was that the Respondent did not challenge the Applicant's evidence on the point.

13.    The evidence of Dr Maxwell was that he had no personal experience in the surgery concerned or its utility for pain relief. He opined that the pain experienced by the Applicant was of a radicular kind that was coming from the discs in the neck and radiating into the shoulders and arms. He opined that the weight of the breast was more likely being born by the thoracic spine rather than the neck and shoulders and hence would not have caused any pain in the neck and shoulders, other than from postural causes. Dr Milovic gave evidence of his experience in this kind of surgery and its utility. The Tribunal's decision to accept the evidence of Dr Maxwell over that of Dr Ferguson (plastic surgeon), Dr Taylor (plastic surgeon), Dr Milovic (plastic surgeon), Dr Macaulay (rheumatologist) and Dr Donaghy (GP) is so contrary to logic and rationality as to be unreasonable in the legal sense.

25    On their face, these so-called grounds of appeal contain submissions as well as grounds of appeal. This is a little surprising given that in Howes (Fed Court 1) the Court drew attention at [43] to the deficiencies in such an approach. This caused the applicant to then file in the previous appeal an amended notice of appeal which set out proper grounds of appeal.

26    No objection to competency was filed by Comcare. I propose to proceed on the basis that material in the notice of appeal in the nature of submissions is not to be read as grounds of appeal.

The parties’ submissions summarised

(a) The applicant’s contentions

27    The applicant’s primary contention, which was said to relate to questions of law 1 and 2, was that the words “in relation to the injury” in s 16 of the SRC Act are purposive in nature and focus attention on the motivation or reason for her medical advisors recommending that she undertake the breast reduction surgery, together with her own motivation or reasons for accepting that advice. It was contended that the primary motivation or reason for the surgery was pain relief even if there was some collateral cosmetic gain which did not negate that primary motivation.

28    The applicant was also critical of some aspects of the AAT’s adoption of the background matters and history summarised in Howes (Fed Court 1), in particular the AAT’s adoption of the statements in [6] and [7] of Howes (Fed Court 1) (see [6] above), which were respectively to the following effect:

(a)    in the context of the applicant’s general practitioner (Dr Donaghy) having referred the applicant in July 2009 to Dr Milovic (a plastic surgeon) for consideration of breast reduction for pain relief, the “applicant claimed that she was advised by Dr Milovic that a breast reduction might assist in the reduction of her pain”; and

(b)    in the context of the applicant having consulted Dr Macauley (a consultant rheumatologist) on 23 October 2009, the “applicant claimed that she asked Dr Macauley whether a breast reduction would be beneficial and that she was told that a breast reduction might assist in pain reduction and that she should ‘consider a breast reduction as a matter of urgency’”.

29    The applicant contended that Dr Milovic had given evidence in the first AAT proceeding and had explicitly affirmed that he gave her this advice and that she adhered to it, with the consequence that it was not simply a case of the applicant “claiming” that she had received the advice. Likewise, the applicant said that Dr Macauley had given evidence in the first AAT proceeding and had confirmed the applicant’s description of the advice she had received from him.

30    The applicant acknowledged that, at [20] of the reasons for decision in the second AAT proceeding, the Senior Member noted the advice given to the applicant by Dr Donaghy and the four specialists (Dr Ferguson, Dr Milovic, Dr Taylor and Dr Macaulay), to the effect that the procedure might assist in pain control. The applicant also contended that there was a finding of fact made to that effect in [23] of the reasons for decision. The applicant emphasised that she received no contrary advice in the time leading up to the surgery and that all the advice she received up to that point was supportive of the procedure for pain control.

31    The applicant was critical of the AAT’s finding in respect of Dr Coyle’s evidence. The applicant had asserted in the first AAT proceeding that Dr Coyle had advised her that the procedure might assist with pain control. Dr Coyle was not required by Comcare to give evidence, yet the Senior Member found at [23] that Dr Coyle did not in fact give that advice because his report dated 12 March 2007 did not mention the issue of breast reduction. The applicant complained that this finding of fact was contrary to the only evidence on the matter, which was that given by the applicant in her oral evidence in the first AAT proceeding. The applicant further complained that this finding by the AAT was also contradictory to “its decision to adopt the findings of fact set out by the Federal Court above” because, at [3] of Howes (Fed Court 1), it is recorded that Dr Coyle did suggest that a breast reduction might help the applicant’s pain.

32    The applicant contended that it was irrational and inconsistent for the AAT to conclude that, because there was no mention of breast reduction in Dr Coyle’s report (which was done two and a half years before the surgery), the issue was not raised in discussion between the applicant and Dr Coyle. Moreover, so it was submitted, the AAT’s finding concerning Dr Coyle’s advice was irrational because:

(a)    Dr Coyle was an orthopaedic surgeon, this was not his field and he was postulating other skeletal-related procedures;

(b)    Dr Coyle’s advice was given well before the applicant was seriously considering the breast reduction; and

(c)    Dr Coyle’s involvement and advice was “not even important” to the applicant’s case because she had received positive advice from five other doctors prior to having the surgery.

33    The applicant was also critical of the AAT’s reasons for decision concerning Dr Burke’s report and the finding that the applicant’s failure to address the reason for her surgery with Dr Burke may imply that she was withholding her true motivation for the surgery (see [27] of the AAT’s reasons for decision). The applicant submitted that Dr Burke was considering the question of her fitness for work one month after the surgery. She further submitted that, given that Dr Burke was reporting to her employer as to her fitness for work, it could not be expected that Dr Burke would anticipate a future claim to Comcare or that her motivation for the surgery would become relevant.

34    The applicant acknowledged that the AAT ultimately came to no finding of fact concerning her motivation. She contended nevertheless that it “defies logic” to draw a negative inference against her. The failure of the AAT to make a finding regarding her motivation was contended by the applicant to be inconsistent with the purposive test in s 16 of the SRC Act.

35    The applicant’s submissions in support of her claim that the AAT’s finding of fact, based on Dr Maxwell’s evidence, that the breast reduction would not have affected her neck and shoulder pain may be summarised as follows:

(a)    Dr Maxwell’s opinion was formed some four years after the surgery and was not provided to the applicant at the time;

(b)    all the other doctors had expressed a contrary view to that of Dr Maxwell;

(c)    the evidence was that the surgical procedure had reduced some of the pain, which contradicts the AAT’s other finding that it would not and could not do so; and

(d)    Dr Maxwell admitted in cross-examination that he had never treated a woman for neck and shoulder pain by breast reduction and that his opinion was a purely theoretical one, whereas Dr Milovic had considerable experience in this area.

36    The applicant added that the AAT’s finding of fact based on Dr Maxwell’s evidence satisfied what was described as the “unreasonableness test” because the applicant was entitled to rely at the relevant time on the uncontradicted advice of her five medical advisors.

37    In oral address, Mr McInerney SC (who appeared together with Mr Anforth for the applicant), submitted that the AAT erred in not concluding that the surgery was in relation to the compensable injuries having regard to the first finding of fact it made as set out in [23] of its reasons for decision. He submitted that Dr Maxwell’s evidence was simply irrelevant to the requirement concerning “in relation to” and its relevance was confined to the separate issue under s 16(1), namely whether the treatment was reasonable for the employee to obtain in the circumstances. He submitted that there was a purposive element not only in paragraph (b) of the definition of medical treatment, but also implicitly in paragraph (a).

38    In reply, the applicant relied upon some observations in Comcare v Watson (1997) 73 FCR 273 and Bashar v Comcare [2002] FCA 837. It should be observed at this point that the observations of Finn J and Madgwick J respectively were directed to the construction of provisions concerning “therapeutic treatment”. As noted above, the definition of “therapeutic treatment” in s 4 contains an explicit reference to purpose. That is to be contrasted with the absence of any such explicit reference in the definition in paragraph (a) of “medical treatment”, which is the relevant definition in the appeal. It is difficult to see the relevance of these cases to the proper construction of the definition in paragraph (a).

(b) Comcare’s contentions

39    Comcare submitted that, having regard to the definition of “medical treatment” in s 4(1) (where there is no explicit reference to purpose or motivation), the determination of whether medical treatment is obtained in relation to a compensable injury is an objective evaluation which is not dependent upon the advice, purpose, intention or motivation of either the patient or his or her medical advisor. Comcare emphasised that, unlike the definition of “therapeutic treatment” in s 4(1), there is no express reference to purpose in the definition of “medical treatment”.

40    On the issue of the proper construction of s 16 of the SCR Act, Comcare submitted that the AAT’s determination of whether the surgery was “in relation to” the applicant’s compensable injuries is a finding of fact. Comcare defended the AAT’s approach on the basis that the AAT had to consider the nature of the applicant’s injuries and to determine whether the medical treatment was obtained in relation to them. The AAT had to be at least reasonably satisfied that the relationship between the surgical operation and the compensable injuries was sufficiently close to establish that the treatment obtained was “in relation to” the compensable injuries. Comcare submitted that the AAT was correct in adopting an approach which rejected the proposition that, merely because a medical practitioner had advised a claimant to undergo particular medical treatment, the decision-maker was obliged to accept that that advice meant that the treatment was obtained “in relation to” the compensable injury. Rather, Comcare submitted that it was a matter for the AAT or primary decision-maker to determine objectively whether the treatment is in relation to a compensable injury.

41    As to the applicant’s contention that the AAT’s findings relating to Dr Coyle’s evidence were unreasonable, Comcare submitted that the Court was effectively being invited to engage in a merits review and that the reasons given by the AAT for preferring Dr Maxwell’s evidence was reasonably open and was not unreasonable in the sense established in authorities such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li); Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 (Stretton) and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 (Eden). Comcare emphasised that the weighing and evaluation of evidence is a matter for the AAT, citing Kelly v Australian Postal Corporation [2015] FCA 1064 (Kelly) at [55]-[58] per Griffiths J.

42    As to the applicant’s contentions concerning the AAT’s findings in relation to Dr Coyle, Comcare submitted that those findings were “not significant” and were but “one ingredient” in the AAT’s analysis in [23] of its reasons for decision. Comcare submitted that, even if the AAT had accepted the applicant’s evidence as to what advice she had received from Dr Coyle, this would not disturb or affect the other findings made by the AAT which were sufficient to support the AAT’s ultimate conclusion.

Determination of the appeal

43    It is convenient to deal with questions of law 1 and 2 together.

(a) Questions of law 1 and 2

44    There is a plethora of caselaw relating to the meaning of what is sometimes described as “connecting phrases”, such as “in relation to” and “in respect of”. The caselaw is discussed at some length in Pearce and Geddes, Statutory Interpretation in Australia, 8th Edition at [12.6]-[12.7]. As the learned authors note at [12.7], the view has generally been taken that there is no difference of substance between phrases such as “in relation to” or “in respect of” etc.

45    Early cases dealing with the phrase “in respect of” suggested that the words have “the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer” (see, for example, Trustees Executors & Agency Co. Ltd. v Reilly [1941] VLR 110 (Reilly) at 111 per Mann CJ). In Workers Compensation Board v Technical Products Pty Ltd [1988] HCA 49; 165 CLR 642 (Technical Products 1) at 653, Deane, Dawson and Toohey JJ stated that, while that phrase has a wide meaning, it is going somewhat too far to say what Mann CJ said in Reilly. Their Honours then added at 653-654:

The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.

46    These observations in Technical Products 1 were directed to the proper construction of s 8(1) of the Workers’ Compensation Act 1916 (Qld), which required every employer to insure with the Workers’ Compensation Board against “all sums for which, in respect of injury to any worker employed by him” he became legally liable to pay compensation under the Act or, in the case of such injury, “damages arising under circumstances creating also, independently of this Act, and legal liability in the employer to pay damages in respect of that injury” (emphasis added).

47    In Technical Products Pty Ltd v State Insurance Office [1989] HCA 24; 167 CLR 45 (Technical Products 2), which involved the same parties as in Technical Products 1, Brennan, Deane and Gaudron JJ said at 47:

The words “in respect of” have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear. The nexus between legal liability and motor vehicle which their use introduces in s 3(1) is a broad one which is not susceptible of precise definition. That nexus will not, however, exist unless there be some discernible and rational link between the basis of legal liability and the particular motor vehicle…

48    These observations were directed to the construction of s 3(1) of the Motor Vehicles Insurance Act 1936 (Qld), which required the owner of a motor vehicle to effect insurance cover “against all sums for which he… shall become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury… where such injury is caused by, through, or in connection with such motor vehicle” (emphasis added).

49    In a different context, as to whether a claim fell within the jurisdiction of the Wardens Court under s 80(1) of the Mining Act 1968 (Qld), which conferred exclusive jurisdiction on that Court in all actions “arising in relation to mining”, which included jurisdiction “with respect to… (g) any matter arising between miners in relation to mining on Crown land…”, Toohey and Gaudron JJ said in O’Grady v Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 at p 374 (emphasis added):

… jurisdiction is not conferred on a Wardens Court by the opening words of s 80(1) unless there is a matter which in truth has arisen in relation to mining… and which does not present some merely remote or hypothetical question for the Court to determine. Although “in relation to” is an expression of broad import, in context with “arising” it presupposes a direct connexion between a presently existing action, suit or proceeding and mining…, not merely an incidental connexion.

50    The issue of the proper construction of the phrase “in relation to” arose in yet another different context in Travelex Ltd v Commission of Taxation of the Commonwealth of Australia [2010] HCA 33; 241 CLR 510 (Travelex Ltd). The context there concerned the goods and services tax (GST) on taxable supplies under A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act). Certain supplies for consumption outside Australia were GST-free. By item 4 in the table to s 38.190(1) of the GST Act, those supplies included supplies that were made “in relation to rights” if the rights were “for use outside Australia” (emphasis added).

51    The issue there was whether the rights which were the incidents of being the holder or owner of bank notes issued by a foreign country were not relevantly connected with the supply constituted by a currency transaction, such that the supply of the bank notes was a supply made in relation to those rights. French CJ and Hayne J said in Travelex Ltd at [25] (footnotes omitted):

It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the enquiry, the legislative history, and the facts of the case” are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights.

52    More recently, in Kennon v Spry [2008] HCA 56; 238 CLR 366, in the context of s 85A of the Family Law Act 1975 (Cth) (which conferred a power on the court to deal with property the subject of a nuptial settlement made in relation to the marriage), Kiefel J said at [217] (footnotes omitted):

The expression “in relation to” is of wide and general import and should not be read down in the absence of some compelling reason for doing so. As Toohey and Gummow JJ said in PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service, the words are prima facie broad and designed to catch things which have a sufficient nexus to the subject. The question of nexus is dependent upon statutory context. Amongst the examples given by their Honours was the consideration given by Gibbs CJ, in Perlman v Perlman, to the meaning of the words “in relation to” in the Family Law Act with reference to two sets of proceedings. His Honour said that they “import the existence of a connection or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind”.

53    It is evident from the AAT’s reasons in the proceeding here that, in determining whether or not the breast reduction surgery was “in relation to” the applicant’s compensable injuries, consideration was given inter alia to the evidence of the applicant’s various medical advisors, as well as to the evidence of Dr Maxwell. This is reflected in the AAT’s findings in [23] of its reasons for decision (which are set out in [18] above) and, in particular, in the first dot point of that paragraph where a finding was made that all five of the applicant’s doctors advised her that breast reduction surgery might reduce the pain, as well as the third and fourth dot points, which were based on an acceptance of Dr Maxwell’s evidence. It is not the case that the Senior Member did not consider the applicant’s medical evidence or regard it as being irrelevant to the question whether the surgery was in relation to the compensable injuries. He plainly did view it as relevant, but he preferred to accept Dr Maxwell’s evidence, which was to the effect that breast reduction surgery could not have affected the symptoms of the applicant’s compensable injuries, for the reasons which are summarised in [21] of the AAT’s reasons for decision. Dr Maxwell’s opinion was heavily influenced by the fact that the applicant’s spinal injuries related to her cervical spine and not her thoracic spine and his view that the weight of the applicant’s breasts was borne by her thoracic spine and not the cervical spine. He also explained why her neck pain would not be affected by breast reduction surgery.

54    I do not consider that the applicant has established any appealable error in respect of this aspect of the AAT’s reasoning. The AAT approached the central issue on the basis that the relational connexion between the surgery and the compensable injuries had to be determined objectively and by reference to all relevant evidence. I accept Comcare’s submission that, in order to determine whether the relational connexion existed, it was necessary for the AAT to consider the nature of the compensable injuries (see Manns v Comcare [2012] AATA 462 at [22]-[23]). Contrary to the applicant’s contention that Dr Maxwell’s evidence was only relevant to the issue of “reasonableness”, I consider that it was relevant to the prior question whether the surgery was in relation to those injuries. It was open to the AAT to prefer his evidence on this question. I do not consider that this simply involved a finding of fact, as suggested by Comcare. The AAT’s conclusion that the surgery was not in relation to the injuries is more accurately described as “an evaluative conclusion” based on primary facts (see Comcare v Martinez (No 2) [2013] FCA 439; 212 FCR 272 at [88] per Robertson J). The subjective views of either the applicant or her medical advisors were not determinative. This is what the AAT apparently had in mind when it stated, later in its reasons at [28], that the surgery was not medical treatment obtained in relation to the compensable injuries, “regardless of whether [the applicant] (or, indeed, any of the doctors that she consulted before the surgery) thought that it was”.

55    It was a matter for the AAT to consider and weigh the conflicting relevant medical evidence (see Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8; 317 ALR 328 (Tarrant) at [100(g)] per Rares, Yates and Griffiths JJ and the cases cited therein, as well as Kelly at [54]-[61] per Griffiths J). The AAT’s finding, as stated in [24], that the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries was substantially based upon the AAT’s preference of Dr Maxwell’s opinion to those of the applicants’ five medical practitioners. In making that finding, I do not consider that the Senior Member misconstrued s 16 of the SRC Act. On the contrary, he plainly proceeded on the basis that there needed to be an appropriate relationship between the medical treatment and the compensable injuries and, in that context, consideration was given to all the relevant medical evidence before the Senior Member concluded that he preferred that of Dr Maxwell.

56    As emphasised above, after concluding that the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries, the Senior Member proceeded in [25] onwards to consider whether or not it was relevant to determine the applicant’s reasons for having the surgery. The AAT made clear in the final sentence of [25] of its reasons for decision that, because of the findings made in [23] which underpinned its conclusion that the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries, there was no necessity to make a finding about the applicant’s reasons for having the surgery. The Senior Member proceeded, nevertheless, to summarise various aspects of the evidence before stating in [28] that he did not think that there was sufficient evidence to make a finding about the applicant’s reasons for having the surgery. It was then made clear that there was no necessity to make any such finding having regard, again, to the critical finding at [23]. It is made clear in the final sentence of [28] of the AAT’s reasons for decision that the earlier critical finding as to why the surgery was not medical treatment obtained in relation to the applicant’s compensable injuries stood regardless of the intentions or motivation of either the applicant or her doctors whom she consulted before the surgery.

57    It is plain that these observations in [25]-[28] of the reasons for decision are in the nature of obiter dicta and are not critical to the AAT’s reasons for dismissing the application to review. Accordingly, even if the AAT’s observations in these paragraphs disclose appealable error they would not affect the AAT’s decision.

(b) Question of law 3 – unreasonableness in the legal sense

58    The applicant’s claim that the AAT’s decision is unreasonable in the legal sense has the following three components, as is expressed in the notice of appeal:

(a)    the alleged inconsistent manner in which the AAT approached Dr Coyle’s evidence;

(b)    the inference drawn by the AAT in respect of Dr Coyle’s evidence having regard to Jones v Dunkel; and

(c)    the AAT’s decision to prefer Dr Maxwell’s evidence over the applicant’s medical practitioners even though Dr Maxwell had no personal experience in the use of breast reduction surgery for pain relief and gave his opinion well after the surgery occurred.

59    The first thing to note is that these three issues all arise under the umbrella of “unreasonableness in the legal sense”. The applicant cited no authority in support of this aspect of her appeal, however, as noted above, Comcare referred to various cases in which this concept has been discussed and applied, such as Li, Stretton and Eden. All these cases involved judicial review for jurisdictional error and not an appeal under s 44 of the AAT Act. The two forms of review of administrative action have a different legal foundation and some caution should be exercised in transferring concepts and principles which have been developed in a judicial review context, which has a Constitutional underpinning, into a statutory right of appeal on a question of law. The same may be said in respect of transferring holus-bolus concepts and principles in the other direction. For example, there is a danger in uplifting and transferring into a jurisdictional error review setting the following frequently cited passages from Brennan J’s judgment in Waterford v The Commonwealth [1987] HCA 25; 163 CLR 54 at 77:

(a)    “there is no error of law simply in making a wrong finding of fact”; and

(b)    that 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”.

60    That is not to say that the concept of unreasonableness in the legal sense has no relevance to an appeal under s 44 of the AAT Act. In Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180; 227 FCR 459 (Ekinci), the Full Court (Bennett, Nicholas and Griffiths JJ) noted at [70] that Li deals with the legal sense of unreasonableness as a ground of review of jurisdictional error. The Full Court then accepted, however, that the High Court’s discussion of that concept “also broadly applies to the concept of unreasonableness in the context of a s 44 AAT Act appeal” (emphasis added).

61    It is convenient to set out the Full Court’s summary in Ekinci of the following propositions established by the joint judgment of Hayne, Kiefel and Bell JJ in Li:

70    In support of that contention, Mr Ekinci relied upon the High Court's decisions in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) and House v The King (1936) 55 CLR 499 (House). Li deals with the legal sense of “unreasonableness” as a ground of review for jurisdictional error. It may be accepted, however, that the High Court's discussion of that concept also broadly applies to the concept of unreasonableness in the context of a s 44 AAT Act appeal.

71    The following propositions are established in that case by the joint judgment of Hayne, Kiefel and Bell JJ:

(a)    the standard of legal unreasonableness does not involve the court substituting its view as to how a discretion should be exercised for that of the primary decision-maker (at [66]);

(b)    the legal standard of reasonableness is the standard indicated by the proper construction of the statute ([67]);

(c)    by reference to the scope and purpose of the statute, legal unreasonableness may be established where a decision-maker is shown to have committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally (notwithstanding that, ordinarily, the weight to be accorded to relevant matters is for the decision-maker to determine) (at [72]); and

(d)    where the decision-maker provides reasons, the review court may not be able to comprehend how the decision was arrived at. In those circumstances, legal unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification (at [76]).

62    It is equally important to note what the Full Court then said in Ekinci at [72] concerning limitations on review for unreasonableness by reference to concepts of illogicality and irrationality (which concepts were raised by the applicant here):

72    There is nothing in Li which contradicts the view previously expressed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] that it is not the Court's function to substitute its own decision for that of the primary decision-maker:

… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …

63    Applying those general principles here, and having regard to the way in which the applicant presented her case in relation to question of law 3, I am not satisfied that she has made good her contentions in respect of any of the three matters to which question of law 3 relates.

(i) Alleged inconsistency in addressing Dr Coyle’s evidence

64    The alleged inconsistency relates to the fact that, while adopting this Court’s summary of the background facts in Howes (Fed Court 1), the AAT then proceeded to make a finding of fact that Dr Coyle did not give the applicant the advice which she claimed.

65    There is no substance in this contention. There is, in fact, no inconsistency. In the early section of the AAT’s reasons for decision under the heading “Background”, the Senior Member adopted the summary of the background facts in the matter as set out in [2]-[12] of Howes (Fed Court 1). Those paragraphs in the Court’s earlier judgment summarise the background to the litigation. They are not in the nature of findings of fact by the Court, but rather are an introductory summary narrative of the events that had occurred which gave rise to the litigation. In adopting those paragraphs, the AAT was, in effect, taking the convenient course of commencing its analysis of the issues in the appeal by reference to the Court’s earlier description of the key events which formed a backdrop to the litigation which led to the remitter. Quite correctly, the AAT did not view itself as being bound by the Court’s summary of those background matters. In particular, notwithstanding the Tribunal’s adoption of those passages from Howes (Fed Court 1) in [4] of its reasons for decision, it correctly saw its task as having to make its own findings of fact on the basis of all the evidence before it for the purposes of the remitted hearing. The Senior Member turned his mind to Dr Coyle’s evidence in [22] and [23] and made his own findings of fact in relation to that subject. The Senior Member noted the applicant’s claims that, prior to her surgery, Dr Coyle advised her that breast reduction surgery might reduce her pain (i.e. reflecting [3] of Howes (Fed Court 1) where, in summarising the applicant’s claims, reference was made to the applicant’s evidence that, in March 2007, she consulted Dr Coyle who suggested that breast reduction would help her pain).

66    It was open to the AAT to make its own findings of fact in relation to this evidence. In a footnote to [22], the Senior Member made specific reference to [3] of Howes (Fed Court 1) and said that he did not “take the Court to have made a finding of fact that Dr Coyle advised Ms Howes about breast reduction surgery” – rather, “the Court was noting that Ms Howes claimed that Dr Coyle gave her that advice”. These observations disclose no appealable error. The Senior Member had to make his own findings in respect of the applicant’s claim regarding what she was told by Dr Coyle. He did so in [23] when he found that Dr Coyle did not advise the applicant that breast reduction surgery might reduce her pain having particular regard to the fact that Dr Coyle’s written report, while canvassing surgical treatment, did not mention breast reduction surgery. That inference was reasonably open to be drawn. The AAT’s analysis and findings in respect of Dr Coyle’s evidence fall far short of being unreasonable in the legal sense.

(ii) The Jones v Dunkel contention

67    The principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298 is reflected in the following extract from Kitto J’s judgment in that decision at 308:

… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.

68    The first point to note is that the AAT is not bound by the rules of evidence (see s 33(c) AAT Act), which provides: “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. In Green v Minister for Immigration and Citizenship [2008] FCA 125; 100 ALD 346, Tamberlin J held at [41] that, because the AAT’s proceedings were inquisitorial in nature, the principle was not applicable. It may well be, however, that if the proceedings are more properly characterised as “adversarial”, the principle in Jones v Dunkel may apply, at least in some instances (see the discussion by Deputy President Forgie in Kumar v Minister for Immigration and Citizenship [2009] AATA 124; 107 ALD 178 at [91]-[115] where the Deputy President concluded that the principle may be relevant in AAT proceedings in assessing the probity or otherwise of the fact that a party has not produced certain material in certain circumstances and as an aspect of procedural fairness requirements that the AAT act on logically probative material). It is unnecessary to resolve that question for the purpose of these proceedings.

69    The elements of the Jones v Dunkel principle may be expressed as follows:

(a)    where there is some basis in the existing evidence to draw an inference which is favourable to the plaintiff (or applicant);

(b)    that inference might more confidently be drawn when a person who is able to explain the facts upon which the inference is grounded has not been called as a witness by the defendant (or respondent); and

(c)    no sufficient explanation is provided by the defendant (or respondent) for the absence of the witness.

70    The applicant contends that, the AAT’s “adverse inference arising from the failure of the Applicant to call Dr Coyle is a misapplication of the logic in Jones v Dunkel” and that if “any logical inference was to be drawn from the absence of Dr Coyle it was that the Respondent did not challenge the applicant’s evidence on the point”. That is not an accurate description of the AAT’s reasoning which, for the reasons below, did not involve a misapplication of the principle.

71    It is desirable to set out the following extracts of the cross-examination of the applicant in the first AAT hearing in relation to her evidence as to what she was told by Dr Coyle:

His report of March 2007, my friend indicated he disagrees with this, doesn’t make mention of either his suggestion that you not wear a bra or his suggestion that you pursue breast reduction surgery. Do you think you might be a bit mistaken as to whether or not Dr Coyle ever did make this suggestion to you? --- No, he definitely said that.

Was it something that you raised with him or he volunteered to you? --- I think he may have volunteered it during a physical exam.

Because it was something that had been on your mind since even before you sustained the neck injury. Do you accept that it’s more likely that you might have suggested breast reduction? --- I can’t remember back that far.

72    Contrary to the applicant’s contention, the AAT did not purport to apply the Jones v Dunkel principle. There is no specific reference to that well-known principle in the AAT’s reasons for decision. Rather, notwithstanding the applicant’s oral evidence, which was uncorroborated, the AAT preferred to infer from the fact that Dr Coyle made no mention of breast reduction surgery in his written report dated 12 March 2007, that he gave the applicant no such advice. This reasoning does not depend upon Jones v Dunkel and there is no substance in the claim that the principle was misapplied. It was stated at the outset of Dr Coyle’s report (which was prepared at Comcare’s request) that “the following information was obtained at the interview unless otherwise stated”.

73    Moreover, even if, contrary to the above, the principle in Jones v Dunkel was misapplied and the applicant is correct in her challenge to the AAT’s reliance upon the contents of Dr Coyle’s report in rejecting her evidence on this issue, any such error would not be material. That is because the AAT made clear that it preferred Dr Maxwell’s evidence to that of the applicant and her medical advisors on the central question of whether the surgery was in relation to the applicant’s compensable injuries. In other words, even if it were the case that Dr Coyle had advised the applicant as she claimed, that would not have made any difference to the outcome of the case in the light of the Senior Member’s finding that several other medical practitioners had advised the applicant that breast reduction surgery might reduce her pain, but Dr Maxwell’s contrary opinion being preferred.

(iii) AAT’s preference for Dr Maxwell’s evidence

74    As emphasised above, faced with the conflicting evidence of the applicant’s medical practitioners and that of Dr Maxwell, it was a matter for the AAT to consider that evidence and to determine its weight and which evidence was to be preferred. That formed part of the AAT’s fact finding task and responsibility (see [55] above). The AAT explained the various medical evidence at some length. Having regard to all the evidence and the transcript of the first AAT hearing, the Senior Member stated that he preferred Dr Maxwell’s opinion. It is evident that the AAT preferred Dr Maxwell’s opinion having regard to his explanation that breast reduction surgery would not have affected the applicant’s neck and radicular pain in circumstances where the weight of the applicant’s breasts was borne by her thoracic spine and not by her cervical spine. Merely because Dr Maxwell had no personal experience in breast reduction surgery did not disqualify him from opining on the relevant issues by reference to the distinction between the thoracic spine and the cervical spine. And the timing of Dr Maxwell’s report is a matter which goes to weight, which was for the AAT to determine. The position is the same in respect of the significance of the applicant’s claim that there had been some improvement in her pain after the surgery, which the AAT expressly acknowledged at [17]. There is no reference in the transcript of the first AAT hearing to the applicant making a formal objection to Dr Maxwell’s evidence on the ground that he lacked expertise.

75    For these reasons, the applicant’s challenge to the AAT’s preference for Dr Maxwell’s evidence over that of the applicant’s medical advisors on the ground of unreasonableness in the legal sense is rejected.

Conclusion

76    For these reasons, the appeal should be dismissed and the applicant ordered to pay Comcare’s costs.

Associate:

Dated:    14 December 2016