Federal Court of Australia
Prosegur Australia Pty Ltd v Higgerson [2024] FCA 203
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: | 8 March 2024 |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal be set aside.
3. The reviewable decisions be affirmed.
4. There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KATZMANN J:
Introduction
1 For many years Craig Higgerson was employed by a succession of employers as an armoured security guard. On 1 April 2002 he injured his left knee when he slipped down steps while carrying about 40 to 50kg of coin boxes (the 2002 injury). At that time, he was employed by Chubb Security Services. Chubb’s workers compensation insurer accepted liability and he was paid for medical treatment under the NSW WorkCover scheme. Six years later he underwent an arthroscopy and was diagnosed with a tear of the posterior horn of the medial meniscus, which was trimmed. He developed osteoarthritis in both knees which caused him pain. Prosegur Australia Pty Ltd acquired Chubb on 16 December 2013 and Mr Higgerson’s employment was transferred to Prosegur. Prosegur is a self-insured “licensed corporation” within the meaning of that term in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The period of its licence was from 1 July 2007 to 30 June 2025.
2 During the course of his employment with Prosegur Mr Higgerson submitted a number of claims for workers compensation. They included claims for compensation for injuring his left knee on 16 October 2019 (the October 2019 incident). Prosegur declined liability attributing his condition to the 2002 injury. Under the terms of its licence, Prosegur was not authorised to accept liability for injuries occurring outside the period covered by the licence. Mr Higgerson sought reconsideration of Prosegur’s determinations but Prosegur adhered to its original position (the reviewable decisions). Mr Higgerson then applied to the Administrative Appeals Tribunal for a review of the reviewable decisions. The Tribunal set aside the decisions under review, finding that Mr Higgerson aggravated the 2002 injury in the October 2019 incident. This is an appeal from that decision.
The claims against Prosegur
3 On 8 October 2019 Mr Higgerson submitted a claim against Prosegur for workers compensation for the pain in his knees which he attributed to the 2002 injury. The reason he apparently gave in his evidence to the Tribunal was that he needed a knee replacement.
4 On 17 October 2019 he saw a general practitioner at the Kotara Family Practice, Dr Max Mollenkopf. He evidently told Dr Mollenkopf that he hyperextended his left knee while stepping off a truck at work the previous day which caused his knee to “flare up” and that he was “fighting with his company about prev[ious] workcover issues regarding his knees going back to [Dr] David Gill with MRI at some point”. Dr Mollenkopf prescribed a trial of Mobic (a nonsteroidal anti-inflammatory drug), advised Mr Higgerson to rest for 24 hours and “ice up” the knee joint. Mr Higgerson returned to the practice the following day seeking a WorkCover certificate. This time he saw a different GP, Dr Oscar Cumming. The records of the practice indicate that he informed Dr Cumming that he had left knee osteoarthritis which had developed after the 2002 injury in which he slipped while carrying coin hoppers. He also told him that he had seen Dr Gill five weeks earlier and he had recommended joint replacement.
5 Dr Cumming considered he was unfit for work for two to six weeks. The diagnosis on the medical certificate was “osteoarthritis of the left knee subsequent to injury at work 2002, with reinjury at work 16/10/2019 stepping off work truck”.
6 On 28 October 2019 Mr Higgerson presented to yet another GP at the Kotara practice, Dr Anthony Isaac, who certified him fit for restricted duties.
7 On 30 October 2019 Dr Peter Steadman, an orthopaedic surgeon, examined Mr Higgerson on behalf of Prosegur. Dr Steadman considered he had osteoarthritis of the left knee caused by the 2002 injury.
8 On 5 February 2020 Mr Higgerson submitted another claim for workers compensation against Prosegur stating that he had hyperextended his left knee when he stepped backwards out of his armoured vehicle on 16 October 2019 in the course of his employment with Prosegur, Mr Higgerson. Prosegur rejected the claim, attributing his problems to the 2002 injury.
9 On 23 June 2020, Prosegur’s decision was affirmed on reconsideration by Moray & Agnew Lawyers as delegates of Prosegur. Mr Higgerson filed an application with the Administrative Appeals Tribunal for review of that decision (AAT No 2020/4266). In this application he contended that the October 2019 incident caused further injury to his left knee and aggravated “his ailment”, namely his osteoarthritis, and that his employment, including the duties he performed while working for Prosegur over the years, contributed to that aggravation “to a significant degree”.
10 On 20 April 2021 Mr Higgerson submitted a further claim for workers compensation for injury to his left knee in the October 2019 incident in the circumstances the subject of the previous claim but this time also relying on “the nature and conditions of his employment in carrying heavy bags of coin”. Once again Prosegur rejected the claim on the same basis as before and its decision was affirmed on a reconsideration. Consequently, Mr Higgerson filed a second application for review with the Tribunal (AAT No 2021/8735).
11 The two applications were heard together. The Tribunal found that Mr Higgerson suffered from osteoarthritis, which was an ailment, but that he was not entitled to compensation under the SRC Act for the osteoarthritis or its aggravation. It also found that Mr Higgerson did not suffer an injury in the October 2019 incident. Nevertheless the Tribunal went on to find that Prosegur was liable to pay him compensation because he aggravated the 2002 injury in the October 2019 incident.
The legal framework
12 Section 14 of the SRC Act relevantly provides that, subject to Pt II, Comcare is liable to pay compensation in accordance with the Act “in respect of an injury [as defined in the Act] suffered by an employee if the injury results in death, incapacity for work, or impairment”. Where an employee suffers an injury within the meaning of the Act, s 16 imposes liability on Comcare to pay the costs of reasonable medical treatment in an amount it determines is appropriate regardless of whether the injury results in death, incapacity for work or impairment.
13 “Injury” is relevantly defined in s 5A to mean:
(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[.]
14 “Aggravation” includes acceleration or recurrence: s 4(1).
15 A disease, injury or aggravation resulting from “reasonable administrative action” is excluded from the definition but the exclusion is irrelevant for present purposes.
16 In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [45]–[46] French CJ, Kiefel, Nettle and Gordon JJ observed (footnotes omitted):
“Injury” in para (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word” (emphasis added).
That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense.
17 Their Honours went on to say at [47] that “suddenness” is not necessary for there to be an “injury” in the primary sense but physiological change is. Later, at [57], their Honours emphatically rejected the suggestion that “subjectively experienced symptoms, without an accompanying physiological or psychiatric change are sufficient” to establish that there was an “injury” in the primary sense. And at [62], they said that the “nature and incidents of the physiological [or psychiatric change” will determine whether there was an injury in this sense.
18 “Disease” is defined in s 5B(1) to mean:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
19 “Ailment” is defined in s 4(1) as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
20 “Significant degree” means “a degree that is substantially more than material”: SRC Act, s 5B(3).
21 Section 5B(2) provides that:
In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
22 Appeals from the Tribunal are limited to questions of law: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s 44(1). The question of whether there is any evidence of a particular fact is a question of law. So, too, is the question whether a particular inference can be drawn from facts found or agreed. Thus, the making of findings and the drawing of inferences in the absence of evidence is an error of law. But there is no error of law simply in making a wrong finding of fact. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6 (Mason CJ) and the authorities referred to there.
The expert evidence
23 Medical reports were before the Tribunal from Dr Steadman, Dr Gill and Dr James Bodel, another orthopaedic specialist to whom Mr Higgerson was referred by his solicitors.
24 Evidence was then given in the Tribunal in concurrent session by the three specialists after a conclave in which they were asked to address a series of questions. The answers, which were unanimous and unqualified are recorded below in italics.
25 They were:
(1) What is the diagnosis of the condition, if any, affecting the applicant’s left knee (the diagnosed condition)?
Osteoarthritis of the left knee.
(2) Was the diagnosed condition caused by the claimed hyperextension of [Mr Higgerson’s] left knee, which allegedly occurred when he stepped backwards out of an armoured truck in his employment at approximately 9.30 am on 16 October 2019?
No.
Without limiting the matters which you consider in answering this question, please address whether the diagnosed condition was a continuation and/or result of the injury [Mr Higgerson] suffered in his employment on 1 April 2002 when he slipped down the steps while carrying approximately 40 to 50 kilograms of coin boxes and jarred and twisted the left knee?
No.
(3) Was the diagnosed condition made worse by the claimed hyperextension of [Mr Higgerson’s] left knee, which allegedly occurred when he stepped backwards out of an armoured truck in his employment at approximately 9.30 am on 16 October 2019?
There is no medical evidence of any significant injury on 16 October 2019.
(4) In addition to the claimed hyperextension incident mentioned at 2 and 3 above, was the diagnosed condition caused by the nature and conditions of the applicant’s employment in carrying bags of coin in the period from 2012 to 16 October 2019?
No.
Without limiting the matters which you consider in answering this question, please address whether the diagnosed condition was the continuation and/or result of the injury the applicant suffered in his employment on 1 April 2002 when he slipped down steps while carrying approximately 40–50 kg of coin boxes and jarred/twisted the left knee.
No.
(5) In addition to the claimed hyperextension incident mentioned at questions 2 and 3 above, was the diagnosed condition made worse by the nature and conditions of the applicant’s employment in carrying bags of coins in the period from 2012 to 16 October 2019?
Minimal.
Without limiting the matters which you consider in answering this question, please address whether the diagnosed condition was the continuation and/or result of the injury the applicant suffered in his employment on 1 April 2002 when he slipped down steps while carrying approximately 40-50 kg of coin boxes and jarred/twisted the left knee.
Minimal.
26 Dr Steadman explained the process the witnesses had undertaken and emphasised that:
[T]he constant theme was that the injury of 1 April is the index event, and all things flow from there. And that means that … populates the answer to all of the questions, which are considering both primary injury, causation, aggravation, flare ups, exacerbations.
27 The Tribunal sought clarification on the answer to question 3. The transcript records its exchange with Dr Steadman, who acted as spokesperson for the experts:
SENIOR MEMBER: Sorry, Dr Steadman, perhaps if I could just clarify, or indeed, yes, to clarify my understanding of your answer - the collective’s answer to question 3. The question being: “Was the diagnosed condition made worse?” And the answer being: “There is no medical evidence of any significant injury”. I infer from that that the question doesn’t arise, because there was no medical evidence of any injury, and therefore it cannot be said that the condition was made worse by any such injury, the existence of which is not demonstrated. Have I understood it?
DR STEADMAN: You understand, I think, us correctly, yes. And maybe Dr Gill or Dr Bodel could interject there if they believe that - with your discretion - if they believe that something different was agreed?
(Emphasis added.)
28 Dr Gill was asked whether he had a different view. He explained that he had not seen Mr Higgerson after the October 2019 incident. Nonetheless, he was at pains to say on the basis of the radiological reports, which both pre-dated and post-dated that incident, that this was a case not merely of a lack of medical evidence of injury but the evidence was of no injury before or after July 2019. The evidence was that there had been little change (“not much”) “in the underlying condition, which is the osteoarthritic knee”.
29 Dr Steadman confirmed this. He pointed out that the most recent investigations (in 2021) consisted of an MRI of both knees and x-rays of the pelvis and the lumbar spine. He was convinced that the arthritis was long standing despite the absence of a reference to it in a report of an MRI performed in March 2012 because of what Dr Gill had reported following the arthroscopy he had performed in 2008. At this point Dr Gill intervened. The transcript records:
I think first of all you need to understand what arthritis is, is where the lining of the joint, which is cartilage, wears away. There was clear evidence of arthritis back in 2008 and 12 [2012] at the time of arthroscopy [and] on the MRI scan. And if arthritis is not commented in a report in 2012, we can easily get the films and show the deficits of cartilage and (indistinct) - there’s no question that this gentleman had arthritis to the point requiring - or, the only thing that could be done being replacement back in 2012, irrespective of what may have been commented or in fact, more specifically, failure to comment on the arthritic changes that were present. They are very - MRI is extremely objective and those films can easily be reviewed. And there’s no doubt - there will be arthritis amongst the MRI scans.
30 In Dr Gill’s report on the arthroscopy dated 25 June 2012 he wrote:
We found (as expected) a medial meniscus tear on the background of quite an arthritic knee.
31 In further questioning by counsel for Mr Higgerson, Dr Bodel said that he accepted that “something happened” on 16 October 2019 which caused Mr Higgerson pain but that “[t]he problem in his knee” was osteoarthritis and there was “no contemporaneous medical evidence” (in the period from 2012 to 2019 during which he was employed by Prosegur) of “any other pathological process which contributed to his injury”. He also explained that osteoarthritis can be painless, intermittently painful and, “if it goes long enough, the pain can be “severe and unremitting”. He went on to say, in effect, that the 2002 injury was the genesis of the osteoarthritis “which has progressively deteriorated over time” in accordance with “the natural history of osteoarthritis”, adding that the October 2019 incident caused “a further post-traumatic aggravation of an osteoarthritic knee”. He was then asked what he meant by “minimal” in the answer to question (5) and he explained that he was referring to the changes in the appearance of the knee as shown on the x-rays taken before and after the October incident. He acknowledged, however, that there was no necessary correlation between the radiological picture and the severity of symptoms.
32 All three doctors agreed that the nature and conditions of Mr Higgerson’s employment with Prosegur did not alter the course of the osteoarthritis.
33 It is abundantly clear from the evidence that all the experts attributed Mr Higgerson’s pain following the October 2019 incident to the osteoarthritis.
The Tribunal’s decision
34 The Tribunal found that Mr Higgerson had an “ailment” relating to his left knee which had manifested in symptoms of intense pain both before and after the October 2019 incident (at [79]). It found that the ailment was osteoarthritis of the left knee and that Mr Higgerson was suffering from that ailment at the time of the October 2019 incident (at [79]–[82]). In light of the medical evidence, it was not satisfied that Mr Higgerson’s employment with Prosegur made a significant contribution to the development of the osteoarthritis. Nor was it satisfied that the October 2019 incident had aggravated the osteoarthritis. Consequently, it concluded that the osteoarthritis was not a disease for the purposes of s 5B(1) of the SRC Act: see [83]-[106]. Notably, the Tribunal observed at [86]:
The doctors all agreed that his osteoarthritis in 2019 was attributable to the original incident in 2002. This was despite the slow progress of the disease and even though arthritis may have multiple causes. By contrast, the answers given in conclave ruled out any relevant connection between the 2019 incident and the aggravation of the underlying pathology of the knee, other than in a short-lived and trivial way.
35 The Tribunal proceeded to consider whether the October 2019 incident caused an “injury (other than a disease)” to his left knee. It referred to the judgment in May and understood that, in order to come to an affirmative conclusion that the October 2019 incident was an injury within the meaning of the SRC Act, it would have to be satisfied that the incident “produced a physiological change or disturbance to the physiological state of his left knee” (at [110]). It noted the unanimous view of the medical specialists that there was no medical evidence of any significant injury occurring on that date. Consequently, it concluded:
On balance, I am not satisfied that the medical evidence supports a finding that Mr Higgerson suffered a physical injury, in the primary sense of that word, on 16 October 2019. Medical evidence of an identifiable physiological change to his underlying knee condition is scanty.
36 The Tribunal then asked itself two additional questions (at [113]), neither of which was put to the medical witnesses for their consideration in the conclave or in questioning thereafter, with a view to determining whether the October 2019 incident fell within the terms of the definition of injury in s5A(c). They were:
• Does the evidence show aggravation of a physical injury (whether or not that physical injury arose out of, or in the course of, [Mr Higgerson’s] employment)?
• If so, does the evidence demonstrate that the aggravation of the physical injury arose out of, or in the course of, [that] employment?
37 The Tribunal answered both questions in the affirmative. It is the posing of these questions, the answers given, and the reasons offered in support which have given rise to the appeal.
38 In asking itself these questions, the Tribunal stated that it was following the “decision-procedure identified in May” (at [113]). It should be noted that the Tribunal appears to have misunderstood what was actually required. In May, the High Court observed that “in some circumstances”, if there is a negative answer to the question of whether there is an “injury” in the primary sense (that is, an “injury (other than a disease)”), “it may be necessary to ask whether the case is one involving aggravation of an injury” (emphasis added). The Tribunal clearly thought it was necessary to do so in the present case. But whether that is so will always depend on the issues before the Tribunal and the evidence presented to it. The question did not arise on appeal in May. And, as will be seen, it did not arise in the present case.
39 Returning to the Tribunal’s reasons, the Tribunal took the expert witnesses to have accepted, following the conclave, that the October 2019 incident had caused “some aggravation of Mr Higgerson’s underlying knee condition” (at [118]). It considered that May did not lay down “an absolute rule that the subjective experience of pain can never constitute the aggravation of a pre-existing injury (in the primary sense)” in the absence of “identifiable physiological change” and noted that May was not concerned with “aggravation as such” (at [124]). (Indeed it was not concerned with aggravation at all.) The Tribunal held that the experience of subjective pain can constitute an aggravation of a pre-existing injury in the absence of any change in “the underlying physiology”, citing Commonwealth v Beattie (1981) 35 ALR 369 at 378 (at [125]). It observed that the medical evidence clearly indicated that Mr Higgerson suffers from “arthritis” in various parts of his body and that his condition was “painful, exhausting and debilitating” (at [126]). It noted, however, that before October 2019 “it”, which I take to be a reference to the osteoarthritis, did not prevent him from carrying out his duties (at [126]).
40 Despite having accepted their opinions on every material issue, the Tribunal purported to discount the opinions of the orthopaedic specialists expressed in concurrent session because of “inconsistencies” in the medical evidence, especially the evidence of Dr Bodel, which it considered “tend[ed] to undermine the cogency of the medical evidence as a whole” (at [142]). As far as I can tell, the “inconsistencies” were identified earlier in the reasons at [53]–[55] as differences of opinion between Dr Steadman and Dr Bodel before the expert conclave and some equivocation on Dr Gill’s part about the effect of the October 2019 incident also before the conclave. In the result, the Tribunal said it preferred the opinions the latter two had expressed before the conclave.
41 At [127]–[128] the Tribunal said:
127 As to the impact of the 16 October 2019 incident, Dr Bodel was unequivocal in his earlier reports. It had caused “further problems with the left knee”, and “caused a further aggravation of the longstanding pathology in the left knee”. Even Dr Gill had previously said he would not be surprised “if a seemingly small event would have flared the chronic left knee problems”. Dr Steadman treated the impact as involving a “minor jar”. Presumably, this reflected his opinion that the pain experienced on that occasion was relatively minor. It was not the sort of excruciating pain one might experience with a broken bone. But given the pain that Mr Higgerson was experiencing in the weeks leading up to this incident, and the subsequent disruption to his employment, the description “minor” is somewhat anodyne if not question-begging.
128 In my view, the identification of arthritis as the governing diagnosis, coupled with a view that his left knee arthritis was attributable solely to the injury sustained in 2002, has deprived the Applicant of compensation to which he is entitled under the SRC Act. There was no consideration by the original decision-makers of the alternative basis for liability identified by the High Court in May, based upon the existence of a physical injury in the primary sense.
42 It went on to reason at [129]–[132]:
129 It was common ground that the Applicant suffered a physical injury in 2002. In his First Report, Dr Steadman stated:
“The significance of the medial compartment changes reflect upon the historical operation where a partial meniscectomy was performed and are known as the Fairbank changes which represented direct consequence of medical meniscectomy of the 2002 injury and its consequential operative interventions.”
130 Under the relevant statutory provision, it matters not that the original injury occurred while he was employed by Chubb. The critical issue is whether the original injury was aggravated in October 2019 in the relevant sense, and if so, whether that aggravation arose out of or occurred in the course of his employment with [Prosegur].
131 The Respondent argues that no such finding can be made, in the absence of clear physiological evidence of a further physiological change occurring on 16 October 2019, so as to require in effect a fresh injury. I think that places too high a burden on a worker under the compensation scheme contained within the SRC Act.
132. As to the final question (d) above, the circumstances of aggravation occurred on 16 October while he was employed by [Prosegur}.
43 The Tribunal concluded that Mr Higgerson aggravated the 2002 injury in the October 2019 incident (at [139(u)]), relying on the following matters: his experience of pain after that incident (at [138]); “the medical notes arising from his initial consultations at the Kotara Family Practice, the subsequent course of his employment, his experience of debilitating left knee pain (both before and after the incident), and the opinions of the specialists who gave evidence in [the] proceedings” (at [140]).
The grounds of appeal
44 Eight grounds were pleaded, although in truth there were only seven, and one (ground 1(e)) was abandoned before the hearing.
45 The remaining grounds read as follows:
1. In making its decision, the Tribunal made or purported to make a finding of fact to the effect that on 16 October 2019, while in the course of his employment by Prosegur, Mr Higgerson experienced an aggravation of a pre-existing injury which occurred in April 2002. In so proceeding, the Tribunal made one, or more than one, of the following legal errors.
a. The Tribunal misconstrued and/or misapplied s 5A of the SRC Act.
i. Properly construed, s 5A(1)(c) of the SRC Act does not permit a conclusion that there has been an aggravation of an injury without an antecedent conclusion that there is in fact an injury to be aggravated.
ii. Properly applied, s 5A(1)(c) of the SRC Act requires a decision maker to undertake all the following steps.
1. First, the decision maker must make a finding of fact as to whether there is (and, where necessary, what is) an injury suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment).
2. Second, the decision maker must make a finding of fact as to whether there is relevantly an aggravation of the injury as found (and, where necessary, defined) in the first step above.
3. Third, the decision maker must make a finding of fact as to whether the aggravation of the injury, as identified in the second step above, arose out of, or in the course, of the employee’s employment of the employee by the Commonwealth or a licensee.
iii. The Tribunal failed to construe and/or apply s 5A(1)(c) of the SRC Act in the above manner in this case.
iv. The Tribunal otherwise misconstrued and/or misapplied s 5A of the SRC Act in this case.
b. The Tribunal failed to provide reasons to the standard required by law.
i. The Tribunal failed to make a finding of fact as to what was the relevant physical injury suffered by Mr Higgerson in April 2002. Absent that finding, the Tribunal’s reasons fail to explain how (if at all) the injury suffered in April 2002 was, or could have been, aggravated on 16 October 2019 in the course of Mr Higgerson’s employment by Prosegur.
ii. The Tribunal otherwise failed to provide reasons to the standard required by law in this case.
c. The Tribunal made a finding of fact for which there was no evidence.
i. In making or purporting to make a finding of fact to the effect that on 16 October 2019, while in the course of his employment by Prosegur, Mr Higgerson experienced an aggravation of a pre-existing injury which had occurred in April 2002, the Tribunal made a finding of fact for which there was no evidence.
d. The Tribunal denied Prosegur procedural fairness or breached the rules of natural justice.
i. In making or purporting to make a finding of fact to the effect that on 16 October 2019, while in the course of his employment by Prosegur, Mr Higgerson experienced an aggravation of a pre-existing injury which had occurred in April 2002, the Tribunal denied Prosegur procedural fairness or breached the rules of natural justice.
ii. The Tribunal failed to give Prosegur notice that the Tribunal might find that on 16 October 2019, while in the course of his employment by Prosegur, Mr Higgerson experienced an aggravation of a pre-existing injury which had occurred in April 2002, and so Prosegur did not have a reasonable opportunity to make submissions that the Tribunal should not so find.
iii. The Tribunal otherwise denied Prosegur procedural fairness or breached the rules of natural justice in this case.
…
f. The Tribunal failed to mention one, or more than one, contention advanced by Prosegur which would have affected the result or was worthy of serious consideration.
i. The Tribunal failed to mention Prosegur’s submission(s) to the effect that Mr Higgerson did not suffer, or could not have suffered, an “aggravation” in respect of which compensation could be payable under the SRC Act.
ii. The Tribunal otherwise failed to mention one, or more than one, contention advanced by Prosegur which would have affected the result or was worthy of serious consideration in this case.
g. The Tribunal exercised its power in a way that was so unreasonable that no reasonable person could have so exercised it.
i. On the basis set out in the preceding grounds and otherwise, the Tribunal exercised its power in a way that was so unreasonable that no reasonable person could have so exercised it.
h. The Tribunal otherwise erred in law.
i. On the basis set out in the preceding grounds and otherwise, the Tribunal otherwise erred in law.
46 Ground (1)(f) is a complaint of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It was effectively reformulated in Prosegur’s written submissions as a complaint of legal unreasonableness, which is broader (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332). Ground (h) is confusing and unhelpful. If Prosegur does not succeed on any of the grounds pleaded in (a)-(g), no other error of law was identified. In the circumstances I propose to proceed on the basis that (h) is purely conclusory and, if none of the other grounds is made out, the appeal must be dismissed.
The issues
47 The following questions arise for consideration:
(1) Did the Tribunal misconstrue s 5A(1)(c) of the SRC Act by failing to determine what injury Mr Higgerson sustained in 2002 (ground 1(a))?
(2) Did the Tribunal fail to provide adequate reasons to explain how the 2002 injury was, or could have been, aggravated by the incident on 16 October 2019 (ground 1(b)?
(3) Was there no evidence to support the Tribunal’s finding that Mr Higgerson aggravated the 2002 injury in the incident on 16 October 2019 (ground 1(c))?
(4) Did the Tribunal deny Prosegur procedural fairness by failing to notify it of its intention to make the finding or give it a reasonable opportunity to make submissions that the Tribunal should not make that finding (ground 1(d))?
(5) Did the Tribunal fail to consider Prosegur’s submission that Mr Higgerson did not suffer, or could not have suffered, an aggravation in respect of which compensation could be payable under the SRC Act (ground 1 (f))?
(6) Was the Tribunal’s conclusion legally unreasonable (ground 1(g))?
Did the Tribunal misconstrue s 5A(1)(c) by failing to determine what injury Mr Higgerson sustained in 2002 (ground 1(a))?
48 At no point in its reasons did the Tribunal determine the nature of the injury Mr Higgerson sustained in 2002. Nor, it appears, did Mr Higgerson make any submission about what that injury was. When I asked senior counsel for Mr Higgerson about this during argument he merely referred to an opinion in a medical report. There is no need to refer to Mr Higgerson’s written submissions on the appeal because they did not address Prosegur’s complaint. Rather, they addressed a complaint Prosegur did not make, namely, that the Tribunal did not make a finding that there had been an injury to be aggravated.
49 Prosegur submitted that, “properly construed, s 5A(1)(c) does not permit a conclusion that there has been an aggravation of an “injury (other than a disease)” without an antecedent conclusion that there [was] such an injury to be aggravated”, citing Comcare v Stefaniak [2020] FCA 560; 170 ALD 262 at [1]-[6].
50 Stefaniak was a short judgment in which Thawley J made orders giving effect to the agreement of the parties that the appeal in that matter should be allowed. The notes to the parties’ proposed consent orders identified the error they agreed the Tribunal had made in the following way:
2. The Tribunal decided that Comcare was liable to pay compensation to Mr Jonathan Stefaniak in relation to the “pain symptoms” which arose during his employment with the Office of National Assessments (the ONA) in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth)
(the SRC Act).
3. The Tribunal made that decision in circumstances where it was unable to identify a “biological cause” for Mr Stefaniak’s asserted “pain symptoms”. In that respect, the Tribunal essentially found that the evidence established that the “biological cause” of Mr Stefaniak’s pain could not be connected with any identifiable physical injury or an ailment which was the “root cause” of that pain. The Tribunal additionally found that there was no aggravation of Mr Stefaniak’s underlying pathology, in the sense that “whatever underlying condition [he] suffered from” was not made worse in any permanent or significant way by his work activity.
4. Although there was no clear understanding of the “biological cause” of Mr Stefaniak’s pain, the Tribunal ultimately found that Mr Stefaniak’s duties at the ONA aggravated an underlying disease which could not be identified with any precision. In making that finding, the Tribunal made two essential assertions. Those assertions were: first, that an aggravation of symptoms, in the absence of alteration of underlying pathology, could amount to an injury for the purpose of the SRC Act; secondly, that an inability to make a diagnosis is “no barrier to a successful compensation claim”.
5. In holding Comcare liable to pay compensation to Mr Stefaniak for “pain symptoms” in the circumstances, the Tribunal made the following legal errors.
6. The Tribunal misconstrued and misapplied s 5B(1)(b) of the SRC Act.
(a) Properly construed, s 5B(1)(b) of the SRC Act requires that a decision-maker be satisfied that an employee has suffered an “ailment”, as defined in s 4(1), before the decision maker can find that the employee has suffered the “aggravation of such an ailment”.
(b) In the present case, the Tribunal was unable to be satisfied that Mr Stefaniak’s subjectively experienced symptoms of pain arose from an “ailment”. That was because of the findings of fact made by the Tribunal that the “biological cause” of Mr Stefaniak’s pain could not be connected with any identifiable physical injury or an ailment which was the “root cause” of that pain.
(c) In circumstances where it was unable to be satisfied that Mr Stefaniak’s pain arose from an “ailment”, the Tribunal was not permitted to find that Mr Stefaniak had suffered the “aggravation of such an ailment” for the purpose of s 5B(1)(b) of the SRC Act.
7. For the above reasons, the Tribunal was obliged to conclude on the findings of fact that it made that Mr Stefaniak had not suffered an “injury” for the purpose of the SRC Act. Accordingly, the Tribunal’s decision must be set aside, and Comcare’s decision declining liability to pay compensation restored.
51 His Honour’s reasons for allowing the appeal were understandably brief. He accepted that it was “an available construction” of the Tribunal’s reasons that it was not satisfied that Mr Stefaniak’s pain arose from an ailment. Nonetheless he concluded that Mr Stefaniak had suffered “an aggravation of an ailment” (at [5]). His Honour went on to say (at [6]):
I am satisfied that s 5B(1)(b), properly construed, does not permit a conclusion that there has been an aggravation of an ailment without a conclusion that there was in fact an ailment to be aggravated.
52 The dispute in the present case, however, does not turn on whether the Tribunal was entitled to conclude that there had been an aggravation of an ailment without first deciding that there was an ailment to be aggravated. Stefaniak was concerned with the extended definition of injury in s 5B, that is an injury in the nature of a disease. In the present case the Tribunal concluded that there had been an aggravation of an injury in the primary sense, that is an “injury (other than a disease)”. The dispute here concerns the proper construction of s 5A(1)(c), not s 5B(1)(b). It does not turn on whether there can be an aggravation of an injury without first finding that there had been an injury to be aggravated. In the present case it was common ground that there had been an injury in 2002. Rather, it turns on whether the Tribunal was able to conclude that there was an aggravation of an “injury (other than a disease)” without first determining the nature of that injury. That is a different question to which Stefaniak provides no answer, even by analogy.
53 That said, it is difficult to understand how the Tribunal could have come to the decision it did. Where the only diagnosed condition was osteoarthritis, as the Tribunal apparently accepted and having excluded osteoarthritis or its aggravation as a compensable disease, what was the “injury (other than a disease)” which was aggravated in the October 2019 incident? How could it decide that the October 2019 incident had any effect on the original injury without first identifying what that injury was? At least in the particular circumstances of this case, it seems to me that that was a necessary step in the decision-making process. Whether the failure to do so amounts to a misconstruction of s 5A(1)(c), as Prosegur alleged, or a failure to complete the statutory task (and hence a jurisdictional error), which seems to me to be the better view, does not much matter. Either way, it was an error of law.
54 It follows that I would uphold ground (1)(a).
Was there no evidence to support the impugned finding (ground 1(c))? Was the Tribunal’s conclusion legally unreasonable (ground 1(g))?
55 It is convenient to deal with grounds 1(c) and (g) next. For reasons which will become apparent, it is also convenient to deal with these two issues together.
56 Prosegur made two submissions. First, it contended that the Tribunal’s failure to identify the “injury (other than a disease)”, which was aggravated, “serves to highlight” the absence of evidence that the 2002 injury was aggravated in the October 2019 incident. Second, it submitted that none of the experts gave evidence that the 2002 injury was aggravated on 16 October 2019 and that proposition was not even suggested to them by the Tribunal or the parties. At all events, there was “no rationally probative evidence” of that and in those circumstances there was no lawful basis for the Tribunal’s finding that it was and hence for its ultimate decision.
57 Mr Higgerson did not address this ground at all in his written submissions.
58 It is trite that there is no error of law in making a wrong finding of fact or drawing a faulty inference of fact: Bond at 356. To succeed on this ground it is necessary for the Court to be satisfied that there is not a skerrick of probative evidence or material: M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed), Lawbook Co., at p 236 [5.270].
59 In Bruce v Cole (1998) 45 NSWLR 163 at 189 Spigelman CJ explained:
[A] decision-maker who acts without probative evidence does not make a valid decision — to which conduct the word ‘perversely’ has appropriately been attached — does not make a valid decision. It is the equivalent of acting without evidence.
{Thus,] a finding of primary fact … will be vitiated if there was no probative evidence to support it. Similarly an inference of fact is vitiated if it is not open on the primary facts properly so found …
60 If, however, an inference is reasonably open, even if it appears to have been drawn as a result of illogical reasoning, there is no error of law: Bond at 356.
61 None of the expert witnesses testified that Mr Higgerson aggravated the 2002 injury in the October 2019 incident. Nor did they say so in their reports. None of the questions directed to them contemplated that it was possible that the October 2019 incident aggravated the 2002 injury.
62 Dr Bodel was asked by Mr Higgerson’s solicitors to express an opinion as to whether Mr Higgerson’s 2002 injury was aggravated by the October 2019 incident. He replied in his first report of 24 February 2020:
This gentleman’s injury to the left knee originally began with the episode in 2002 (01 April 2002).
The incident on 16 October 2019 has probably caused some additional structural damage in that abnormal knee and it has certainly caused an aggravation of the underlying pathology. The nature and conditions of his work is also an aggravating factor for the left knee and for the right knee as well.
63 He went on to say that “the nature and conditions of his work since the original injury in 2002 has caused aggravation, acceleration, exacerbation and deterioration of that disease process …”.
64 During the expert conclave Dr Bodel resiled from all these opinions save for the first one regarding the genesis of the left knee injury. He made it clear both in his reports and in oral evidence that before the conclave, unlike Dr Steadman, he had not seen any x-rays other than the most recent ones taken in April 2021 or any histopathology or reports of arthroscopic findings.
65 Dr Gill did not see Mr Higgerson after 17 July 2019. His opinion, expressed in a report dated 17 February 2021 was that his “left knee issues clearly relate to the work accident of 2002”. In answer to the question whether the 2002 injury was aggravated by the October 2019 incident, he wrote:
My last consultation with Mr HIGGERSON was 17th July 2019, hence I can not really firmly comment on an event that occurred some 3 months later. I can note that there was persistent problems with the LEFT knee since 2002, and the most recent arthroscopic examination in 2012 did show an arthritic knee, and hence I would not be surprised if a seemingly small event would have flared the chronic LEFT knee problems.
66 It will be recalled that in its reasons (at [126]), the Tribunal said that the medical evidence clearly indicates that Mr Higgerson suffers from arthritis in various parts of his body and that “his condition is painful, exhausting and debilitating”.
67 So much may be accepted. It may also be accepted that in some circumstances an increase in symptoms without a change in pathology can amount to an aggravation of an injury and that it will usually be a question of fact in any particular case whether it does (see Beattie at 378–379 per Evatt and Sheppard JJ). But that is not the question here. The question here is whether there was evidence that the increase in symptoms that occurred on or following the October 2019 incident aggravated a particular injury, namely the 2002 injury. The mere fact that there was an increase in symptoms more than 17 years after that injury is plainly not enough, particularly against the background of the osteoarthritis to which the medical experts had attributed those symptoms. The experts’ unanimous opinion following the conclave was that the October 2019 incident had no more than a minimal effect on his arthritis.
68 Having attributed Mr Higgerson’s symptoms solely to osteoarthritis and without finding that the osteoarthritis had been aggravated by the October 2019 incident, it is difficult to understand how the Tribunal could find that the October 2019 incident aggravated the 2002 injury without also finding that the osteoarthritis had been aggravated. Contrary to the submissions for Mr Higgerson, the expert evidence did not provide an answer. In this particular case the question of whether the increase in Mr Higgerson’s symptoms following the October 2019 incident amounted to an aggravation of the 2002 injury was a question of fact. But it was a question of fact which, if it arose at all, could only be answered on the basis of expert medical evidence.
69 The fact that Mr Higgerson’s arthritis “did not prevent him from carrying out his [full] duties until October 2019” (Tribunal’s reasons at [126]) is no answer. Nor are the references to the opinions in the medical reports at [127] of the Tribunal’s reasons.
70 First, the Tribunal’s findings that Mr Higgerson was suffering from osteoarthritis, that osteoarthritis was an ailment and that Mr Higgerson did not satisfy the definition of “disease” in s 5B(1) of the SRC Act precluded a finding that the worsening or recurrence of his pain or the restrictions in his work that resulted from it amounted to an aggravation of the osteoarthritis.
71 Second, as the evidence was that osteoarthritis is a degenerative disease and Mr Higgerson’s medical history showed that it was inevitably going to worsen, the mere fact that he was placed on restricted duties is of no consequence. The “longstanding pathology in the left knee” to which Dr Bodel referred in his reports was osteoarthritis. In his oral evidence Dr Bodel said that the post-2019 changes were “minimal”, and “just part of the progressive condition”. The “chronic left knee problems” to which Dr Gill referred in his report were a manifestation of the osteoarthritis. That is plain from the report and the doctor’s oral evidence.
72 It is true that in correspondence Dr Bodel was asked for his opinion about whether Mr Higgerson would have suffered an aggravation of the injury to his left knee by reason of the October 2019 incident and the nature and conditions of his employment with Prosegur had it not been for the 2002 injury. Dr Bodel replied (in his report of 16 April 2021):
This is a difficult question. The event on 16 October 2019 has caused a further aggravation of the longstanding pathology in the left knee. It has probably not caused any acceleration of the degenerative process. There is no definite indication that there was additional structural damage as a result of that event.
73 The difficulty for Mr Higgerson is that the longstanding pathology in the left knee was osteoarthritis. In other words the evidence was that the osteoarthritis had been aggravated not the 2002 injury.
74 To the extent that Dr Bodel expressed the opinion in his earlier report that the October 2019 incident had probably caused some additional structural damage and had certainly caused an aggravation of his underlying pathology, it is apparent from the transcript of the concurrent evidence that he no longer adhered to these opinions. That does not reflect an inconsistency in the evidence which entitled the Tribunal to put the expert evidence to one side as it purported to do in addressing the questions it posed for itself.
75 More importantly for present purposes, these opinions did not provide an affirmative answer to the question raised by the Tribunal of whether the October 2019 incident aggravated the 2002 injury and no such question was put to the experts either by counsel or the Tribunal during their concurrent evidence.
76 The fact that it was common ground that Mr Higgerson suffered a physical injury in 2002 (Tribunal’s reasons at [128]) does not tell one anything about the relationship between that injury and the symptoms suffered more than 17 years later.
77 In all the circumstances, I am satisfied that the Tribunal drew an inference which was not supported by probative evidence. That was an error of law of the kind Kiefel J identified in Rodriguez v Telstra Corporation Ltd [2002] FCA 30, 66 ALD 579 at [21]–[26].
Did the Tribunal fail to provide adequate reasons for the finding that the 2002 injury was, or could have been, aggravated by the incident on 16 October 2019 (ground 1b)?
78 In the event that I am wrong to have come to either of the above conclusions I would hold that the Tribunal’s reasoning process disclosed an error of law.
79 Section 43(2B) of the AAT Act provides that:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
80 There was no dispute that a failure to give reasons for decision which satisfy the terms of s 43(2B) is an error of law: see for example Karabolovska v Comcare [2019] FCA 2153; 169 ALD 117 (Perry J) at [40].
81 Accordingly, whether the reasons of the Tribunal were appealably inadequate depends in part on whether the Tribunal’s reasons did not include its findings on material questions of fact and/or reference to the evidence or other material on which those findings were based. It also depends on whether the Tribunal considered that the relationship between the 2002 injury and the incident on 16 October 2019 was a material issue. But the obligation on the Tribunal goes further than this, as the Full Court explained in Wonson v Comcare [2020] FCAFC 76; 377 ALR 596 at [90]-[93]. The obligation “demands the furnishing of reasons which make intelligible the true basis of the decision”: ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 204 (Burchett J). That must be done in “clear and unambiguous language, not vague generalities”: Wonson at [90] citing Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500 at 507 (Woodward J). The reasons must disclose “the logical process” by which the Tribunal moved from the factual findings to the result: Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; 43 AAR 236; 91 ALD 103 at [40] (French J). In other words, the Tribunal is required to disclose its path of reasoning in sufficient detail to enable a court to see whether it has made an error of law: Wonson at [93]. The failure to do so is also an error of law: Karabolovska at [95].
82 So did the Tribunal err in any of these respects?
83 Mr Higgerson argued it did not. He submitted that the findings the Tribunal made were open on the evidence. That begs the question. Mr Higgerson also submitted that the Tribunal correctly identified the key differences in the parties’ positions, exposed the reasons for resolving the point of contest between the parties and sufficiently exposed how and why it made its orders. This submission can be accepted, but only up to a point. I also accept that the reasons of an administrative decision-maker are not to be scrutinised overzealously: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–2. In an application of this kind, courts are not concerned with looseness of language or “unhappy phrasing”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
84 But this is not (or not just) a case of loose language or unhappy phrasing. The reasons offered in support of the impugned finding are largely incoherent. The process by which the Tribunal reached its ultimate conclusion that the October 2019 incident aggravated the 2002 injury is, with respect, unintelligible. Certainly its reasons do not explain in clear and unambiguous language how it deduced that the October 2019 incident aggravated the frank injury that occurred on 1 April 2002 in circumstances in which it had ruled out an aggravation of the osteoarthritis (which it attributed to that injury) and when it found, consistently with the unanimous opinion of the medical experts, that the only condition from which Mr Higgerson suffered was osteoarthritis.
85 The matters upon which the Tribunal purportedly relied do not take the matter any further. The notes from the initial consultations at the Kotara Family Practice do not assist. While they record a history of “a flare up” in, and increase of, pain since the October 2019 incident, they do not suggest that that incident aggravated the 2002 injury. Neither does the subsequent course of Mr Higgerson’s employment. In the absence of a finding that the osteoarthritis was aggravated by the October 2019 incident, the fact that Mr Higgerson remained on light duties thereafter tells one nothing about the relationship between the pain he was experiencing and the 2002 injury. The fact that he had debilitating knee pain both before and after the October 2019 incident is entirely neutral. And, as I have already pointed out, the evidence of the medical specialists does not support the impugned finding.
86 Put simply, while the Tribunal explained why it considered that an increase in symptoms alone could amount to an aggravation of an injury, the Tribunal provided no explanation for how the increase in Mr Higgerson’s symptoms following the October 2019 incident amounted to an aggravation of the 2002 injury. The logical path the Tribunal took to reach that conclusion is elusive.
87 For these reasons I find that the Tribunal failed to adequately disclose the logical process by which it reached its ultimate conclusion and thereby erred in law. It follows that I would uphold ground 1(b).
Did the Tribunal deny Prosegur procedural fairness by failing to notify it of its intention to make the finding or give it a reasonable opportunity to make submissions that the Tribunal should not make that finding (ground 1(d))?
88 In substance, Prosegur submitted that the Tribunal’s impugned finding came as a complete surprise.
89 Generally speaking, the rules of procedural fairness do not require decision-makers to give notice of the findings they intend, or are minded, to make: F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 (Lord Diplock). But as the Full Court (Northrop, Miles and French JJ) said in Commissioner for the Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 at 591–2, the general principles are subject to certain qualifications:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(Emphasis added.)
90 Whether Mr Higgerson aggravated the 2002 injury when he twisted or jarred his left knee in the October 2019 incident was plainly an issue which was critical to the decision the Tribunal made. Two questions arise here. The first is whether it was an issue between the parties and therefore an issue to be resolved. The second is whether the Tribunal’s finding was one which would not obviously have been open on the known material.
91 As I mentioned at the outset of these reasons, Mr Higgerson filed two applications for review in the Tribunal, both completed by his solicitor, Tony Cardillo. Both those applications identified the reason why he was contending that Prosegur’s decision to decline liability was wrong by reference to the applications for reconsideration which was attached to the applications for review.
92 In the first (matter no 2020/4266) the reason was put in the following way:
We submit that the incident on 16 October 2019 while Mr Higgerson was engaged in the employer’s employment both caused further injury to Mr Higgerson’s knee, and aggravated his ailment; his ailment being a disease injury of post-traumatic osteoarthritis, and that the aggravation was contributed to, to a significant degree, by the employee’s employment.
Further, his ongoing performance of his duties during his employment, that of engaging in heavy work that requires kneeling, squatting and a lot of climbing and carrying heavy objects, has contributed to a significant degree the aggravation of his disease
93 In the second (matter no 2021/8735) the reason was:
[Mr Higgerson] maintains that he suffered an injury in 2002 from which he did not recover. On 16 October 2019, he suffered a further injury aggravating the injury in 2002. In addition he asserts that the nature and the conditions of his employment since 2002 aggravated the injury he suffered in 2002.
(Emphasis added.)
94 Thus, while the first application did not suggest that it was any part of Mr Higgerson’s case that the October 2019 incident aggravated the 2002 injury, the second application clearly did. At the time this second application was filed, Prosegur was on notice that Mr Higgerson would argue that he should succeed on the basis upon which the Tribunal found in his favour.
95 That position was maintained in the Applicant’s Statement of Facts, Issues and Contentions (ASIFC) dated 15 February 2022, which was filed in the Tribunal for Mr Higgerson and signed by Mr Cardillo. In that document, the following contentions were made:
a. [Mr Higgerson] contends that the injury to his left knee arose out of or in the of his employment with [Prosegur] as a consequence of the injury he suffered on the 16th October, 2019 and as a consequence of the nature of the duties he performed in the course of his employment for [Prosegur] from 2012 to the 16th October, 2019 when [Prosegur] was at risk.
b [Mr Higgerson] contends that he suffered a consequential injury to his right knee as a result of favoring his left knee and placing more weight on his right knee during the course of and in the performance of his duties in his employment with [Prosegur] from 2012 to the 16th October, 2019.
c. In the alternative [Mr Higgerson] contends that as a consequence of the performance of his duties in his employment with [Prosegur] from 2012 and as a consequence of the injury he suffered on the 16th October, 2019 he aggravated the injury he suffered in 2002 and that aggravation arose out of the course of his employment with [Prosegur] pursuant to Section 5A(l)(c) of SRCA.
(Emphasis added.)
96 Of course, the Tribunal found that Mr Higgerson did not suffer an injury on 16 October 2019 and did not find that the duties he performed for Prosegur after 2012 caused or contributed to any aggravation of the 2002 injury.
97 There is no reason to think that the questions put to the experts were drafted by the Tribunal. I infer that they were agreed to by the parties and reflected a common understanding of the critical questions. Those questions narrowed the scope of the issues for determination and the answers given to them narrowed them even further. In closing submissions in the Tribunal Mr Higgerson did not indicate that the question of whether the October 2019 incident aggravated the 2002 injury was an issue in the proceeding. And in submissions in reply he did not quarrel with Prosegur’s summary of the issues which did not include such a question.
98 On the question of aggravation, Mr Higgerson submitted to the Tribunal that “pain could constitute an aggravation of a pre-existing condition” and that he had “suffered an identifiable injury” resulting in “a secondary pain condition” while “performing employment-related activities”. He did not indicate what the “identifiable injury” was or when it had occurred. The pre-existing condition, here, of course, was osteoarthritis. He continued: “[T]he pain was so debilitating and severe that it constitutes an aggravation, even though no pathological change [took] place”, citing Beattie 201 and Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44. While both Beattie and Tippett were cases about the aggravation of “an injury (other than a disease)” no reference was made to s 5A(1)(b). The only reference to the definition of “injury” in the Act was to the definition in s 5B. Mr Higgerson submitted that “in considering s 5B(2)(b) [which I take to be a reference to s 5B(1)(b)] the Tribunal would have regard to the physical demands of the work of armoured vehicle operators and there could be “no doubt” that the nature and conditions of Mr Higgerson’s work for Prosegur were “extremely physically demanding”. He argued that the severity of his symptoms was of such a nature that it amounted to an aggravation of his “condition”.
99 That Mr Higgerson’s submissions were directed to an aggravation of the disease of osteoarthritis rather than the original injury in 2002 is most apparent from what he put at [35]-[36]:
35 The Applicant’s symptoms of [his] pre-existing arthritis increased, intensified or recurred in October 2019, and accordingly applying these authorities and the statutory test in s 5B(1)(b) there was an ‘aggravation’ of the Applicant’s condition even if there had been no increase in the underlying pathology.
36 As the High Court explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at 482 (May), the first task of the tribunal of fact is to determine if the employee is suffering a disease.
100 He proceeded to refer to the definitions of “disease” and “ailment” and “aggravation” before turning again to the judgment in Tippett. Nowhere in those submissions did he state that it was part of his case that the October 2019 incident aggravated the 2002 injury. Nor did he do so in reply.
101 In its submission to the Tribunal Prosegur wrote that, “based on the decisions [under review] and the manner in which [the hearing] progressed”, the issues were summarised in the questions contained in the document put to the expert witnesses. That document did not contain the question the Tribunal posed for itself which led to the impugned finding. Prosegur also submitted that this was a case in which “the determination of the relevant question of fact (that is, whether there was an injury on 16 October 2019) [was], in effect, relegated to experts”. It argued that the substance of the case it now put was not put to any of the experts in concurrent evidence and it would be procedurally unfair if the Tribunal were to accept Mr Higgerson’s contention of an “identifiable injury” with a consequential secondary pain condition while performing employment-related activities or any asserted pain-based aggravation.
102 In his submissions in reply, Mr Higgerson did not dispute Prosegur’s summary of the issues. On the other hand, he submitted that Prosegur was squarely on notice that he relied on “debilitating pain since the incident on 16 October 2019”. He argued that questions of causation and evaluation of evidence were not “relegated” to medical experts. He insisted that the Tribunal was in a position where it could draw its own inference. He did not however argue that the “debilitating pain” he had experienced since the October 2019 incident was an aggravation of the frank injury in 2002. His argument was that it was an aggravation of his osteoarthritis. That seems clear from his reference to Wuth v Comcare [2022] FCAFC 42; 289 FCR 464 in which he drew attention to the remarks by Wheelahan J about the need for physiological change only in the case of an “injury (other than a disease)” and not in the case of an “ailment”. It is in that context that Mr Higgerson argued that “pain can in certain circumstances constitute an aggravation of a pre-existing injury and … that it is open to the Tribunal to find that even though there was no underlying pathological change evident, there could be an aggravation”.
103 Prosegur sought and was given permission to put a further submission in response to several matters raised in Mr Higgerson’s submissions. On this point he argued that the Tribunal was not entitled to draw its own inference if such an inference were inconsistent with the expert evidence.
104 In submissions in this appeal, Mr Higgerson asserted that the question of whether there was an aggravation of the 2002 injury in the October 2019 incident was an issue before the Tribunal. But the citation for that assertion was the Tribunal’s finding in [139] of its reasons that the October 2019 incident caused aggravation to the 2002 injury. The mere fact that the Tribunal made that finding does not establish that this was an issue. The questions put to the experts both in writing and orally and the manner in which the case was ultimately argued indicate otherwise.
105 Mr Higgerson submitted that Prosegur “approached the hearing based on a pre-existing 2002 injury that was aggravated or became symptomatic and disabling after the 16 October 2019 accident” and “this injury” was uncontroversial. As the 2002 injury “was in evidence”, he submitted that the Tribunal was obliged to take it into account”; the Tribunal was not obliged to relist the matter, forecast to the parties its inclination to find that the October 2019 incident aggravated the 2002 injury, and give Prosegur another chance to persuade the Tribunal against this course. He argued that Prosegur “had and took its chance”.
106 Of course, the Tribunal was obliged to take the 2002 injury into account. Otherwise, however, I cannot accept these submissions. Despite what was put in the application for review and the ASFIC, the hearing was not conducted on the basis that the October 2019 incident aggravated the 2002 injury. As I have already observed, no such proposition was put to the medical witnesses. Nor, contrary to what the Tribunal evidently believed, was it put in submissions to the Tribunal.
107 In its reasons the Tribunal addressed Prosegur’s supplementary submissions. Relevantly, at [136] the Tribunal stated:
[Prosegur] appears to contend that after hearing all the evidence the Tribunal is precluded from examining whether the incident of 16 October aggravated [Mr Higgerson’s] previous injury sustained in 2002 …
108 As Prosegur submitted, this was a misapprehension of its position. Its complaint related to Mr Higgerson’s submission that he suffered from “a secondary pain condition” which arose while he was performing “employment-related activities” and which was caused by “an identifiable injury”. Prosegur claimed that this was a novel argument. Mr Higgerson did not say (and Prosegur did not understand him to be saying) that the “identifiable injury” was the 2002 injury.
109 In all the circumstances, I consider that procedural fairness required that Prosegur be given the opportunity of addressing the question of whether the October 2019 incident aggravated the 2002 injury. I have no doubt that, if Prosegur were alert to the issue, it would have squarely done so.
110 It follows that I would also uphold ground 1(d).
Did the Tribunal fail to consider certain of Prosegur’s submissions (ground 1(f))?
111 In large part, Prosegur’s arguments in support of this ground relate to the quality of the Tribunal’s reasons. Otherwise they are a litany of grievances about the Tribunal’s failure to address certain points it made, some of which may have merit, others not. In view of my conclusions on the other grounds of appeal, however, it is unnecessary to deal with them.
Conclusion
112 The appeal should be allowed, the decision of the Tribunal set aside, and the reviewable decisions affirmed.
113 Although Prosegur included an order for costs in the orders it sought in its originating application, it withdrew that part of its claim. I will therefore make no order as to costs.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. |
Associate:
