. " hig Workers' Compansation - Commonwealth Employce - Compensation U- re y DP an respect of incapacity for work resulting from disease contributed to by employment - Appeal ~ Compensation (Comnonvealth Government Employees) Act 1971 s.25, 23, 39, 45, 46, 60, 63, 83 and 95. @ BUI'WEEN: COMMONNEALTH OF AUSTRALIN ~ Appellant -~and- * WILLIAM DAWSON SZOTT Respondent {Claiment) W.A. No. G17 of 1978 CORAM: FISHER J. ADELAIDE. e@ 8 Pebruary 1979, IN THE FEDERAL COURT OF AUSTRALIA GENERAL _ DIVISION ie) R b WESTERN AUSTRALIA DISTRICT REGISTRY i i) ) ) ) W.A. No. G17 of 1978 } ) ON APPEAL UNDER THE COMPTINSATION { COMMONWEALTH GOVEREMENLD EMPLOYE!S) ACT 1971 FROM THE COMMONWEALTH UMPLOYELS' COMPrNSAVION TRIBUNAL BETWEEN: COMMON YOALYTH OF AUSTRALIA Appellant - and - WILLTAM bDAWwSOI SCOTT Respondent (Claimant) R JUDSE MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: FISHER J. 8 PEBRUARY 1379 ADEDLAIDS. This appeal be dismissed with costs. IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) W.A. No. G17 of 1978 ) ) ON APPEAL UNDER THE COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 197] FROM Tie COMMONWEALTH EMPLOYEES! COMPENSATION TRIBUNAL BETWEEN: ™ COMMONWRALTH OF AUSTRALIA ; Appellant - and - WILLIAM DAWSON SCOTT Respondent (Claimant) CORAM: Fisher J. 8 February, 1979 REASONS FOR DECISION This 1s an appeal by the Ccmmenwealth of Australia ("the appellant") under s.95 (1) of the Compensation (Commonwealt!: Government Employees) Act 1971 ("the Act") from a determination dated 12 January 1978 of the Commonwealth Employees! Compensat? o:- Tribunal ("the Trabunal"), Section 95 (1) requires that such an appeal be "on a question of lay only. The course the matter has taken 18 canvassed in the three sets of reasons of the Tribunal dated 15 July 1977, 15 September 1977 and 12 January 1978 respectively and there 15 no need to repeat all of what is there set out. Before his retirement at about the end of 1976 William Dawson Scott ("the respondent") was employed as an Aircraft Maintenance Overseer with the Commonwealth Department of Transport and had been employed by that department for slightly more than 30 years, In late 1975 he began to complain of a hearing disorder a high frequency buzzing in his ears. This has been diagnosed as tinnitus of the Fight ear. Associated with 1t was a binaural sensori-neural high tone hearing loss which had been noted at tests of the respondent's hearing in previous years. In about June 1975 he had suffered a heart attack and the complaints of the tinnitus began about a month after his return to work in September 1975 following sick leave taken because of the heart condition. His capacity for work deteriorated from this time onwards and again, 2n Lebruary 1976, he toox more sick leave and remained on sick leave until his retirement. In December 1975 the respondent instituted a claim under the Act directed to the Commissioner of Employees' Compensation for compensation on the basis that his loss of hearing and tinnitus resulted from exposure to aircraft engine no1lse over a long period in his work. The farst determination of compensation was dated 25 March 1977 and a lump sum award for an injury was meds under s.39 hy the dclnga « of theo Comc-iseLoner. The respondent sought the reconsideration of his claim by the Tribunal pursuant to 5.63 (1) (a) of the Act. .in so doing he requested a determination under s.,29 4n regard to his incapacity for work as a consequence of the tinnitus. The evidence put before the Tribunal on the two occasions that it heard the matter, namely 15 July 1977 and 13 December 1977 came from medical sources, from oral evidence given by the respondent's colleagues at work and from the respondent himself. By the tame of the delivery of the September 1977 reasons the medical evidence supported the conclusion that he was affected « by the tinnitus and the heart condition and suffered some incapacity This was the evidence contained in reports of hearing tests, reports by Dr. Hughes and Mr, Sunderman and the oral evidence of Dr. Clements who had conducted one of the above hearing tests, which latter oral evidence the Tribunal particularly relied upon. In addition the evidence of a colleague at work given at the July hearing confirmed the deterioration in his work performance after about October 1975 and the fact that the respondent compiusr- of his tinnitus. The responjent's own evidence at this hearty was to the effect that he was greatly distressed by the tinnitus, that it handered his sleeping and recovery from the heart attack and that consequently he was always very tired at work. The evidence at the December 1977 hearing was more extersive as regards the respondent's incapacity for work. The second of tw medical reports from Dr. Chew specifically dealt with the nature and extent of he lneapecit i ft, rok scueludarg tha: 'Mr. i0M 1s mqdically unfit for cmployment invelving physical and/or montal exertion and stress. He 1s also unable to work regularly and consistently on account of his tinnitus and :elated symptoms." Evidence was also this time given by two of the respondent's colleagues at work (including further evidence from the colleague abovementioned) confirming the difficulties the respondent suffered before his retirement and that he was incapable of performing his work with the department. In the opinion of the colleague who had not previously given evidence the respondent "was not really capable of doing any sort of job at all." At the conclusion of the evidence at the July 1977 hearing the appellant conceued that (a) the cmployinent of the claimant by the Commonwealth was a contributing factor to the contraction of the tinmstus;: and (b) partial incapacity resulted therefrom; (c) the retirement ot the clainant fron the Public Service was, inter alia, on the grounds of his tinnitus; (ad) the claimant 1s not toally ancapacitated for work unless as an "odd lot;" (ce) the degree of doafness the claimant sutfered result-ny from his employment 1s of or about the order of 7.24% loss of hearing. The Tribunal 1n its July 1977 reasons found as matters of fac the concessions by the apnellant and set aside the determination of 25 March 1977. It then adjourned the matter "for leqal submissions by the parties on the effect of the facts so found," The appellant in its submissions then sought to retreat from concession (c) on the ground that it had now been informed that the respondent's heart conditton was the sole cause of his retire~ ment. Tro ite Septamber L977 reacons the Prelunal decidad thar ave it reconsidered the matter 1t wounid come to the same conclusion or a atl the facts covered by concession (c) cven though it maght now 'be possible to say that the respondent's retirement was in fact an part due to the heart condition. The Tribunal also found that the tinnitus condition was a condition different from the hearing loss and that the lump sum award for the latter under s.39 in the determination of 25 March 1977 was separate from and did not prevent or meet a claim under s.46 of the Act for partial incapacih for work. Its concluding words are important to note, It set aside the determination of 25 March 1977 and adjourned the hearing to a later date when it would "then give appropriate directions for the continued reconsideration of this matter to enable a determination to be made in substitution for the determination sic aside." To that stage it had spoken of only one dcterminaticn havang been made, that of the delegate on 25 March 1277 and spoke of the "continued reconsideration of this matter." At the December 1977 hearing the appellant called no evidence and in doing so refused to put into evidence a méed.cal report of the respondent's conditicn obtained by 1t under s.60 of the Act. As a result of this refusal the Tribynal indicatcd duting argument that it would draw an unfavourable inference against the appellant. After reiterating this in its January 1978 reasons and after discussing the evidence that the resperdent had adduced at the hearing to the effect that he was totally incapacitated for work it stated that 1t drew the ainfercnce that the report that had not been put in evidence accorded with the respondent's evidence The Tribunal found that the respondent's labour was unsaleable in any market reasonably open to him. We wa. dhedetore tolully anes acacat) 6 oot werk and entitted Lt compensation under s.45 of the Act. Section 39 (14) necessitated the further finding that he was not entitled to compensation under s.39 as well as s.45. The Tribunal made 1ts determination in the following terms: "Accordingly in substitution for the determination of 25th March 1977 1n this matter set aside on the 15th September 1977, I determine: - (a) the claimant, William Dawson Scott, contracted diseases namely tinnitus to the right car and binaural sensozri- neural high tone hearing loss to which his employment was a contributing factor; (b) he is totally incapacitated thereby; (c) he as~entitled to payment of compensation under section 45 of the Act." The appellant appealed ayainst this determination upon many grounds but at the hearing of the appeal abandoned atl of them and by consent substituted two amended grounds of appeal as follows: 1. It was not open to the tribunal to find that the responidenar was totally incapacitated and cntilied to payment cL compensation under section 45 of the Compensation (Australian Government Nmployees) Act 1971 as amendcd. The tribunal misdirected itself in respect of the fact that the appellant aid mot call evidence at the hearing on the l3th Decembe: 1577. The first ground of appeal raises, aSit was acknowledged by the respondent, a question of law. liowever the appellant is limited on this ground to the contention that there was no evidence - at all, as opposed to a contention of insufficiency of evidence or of a lack of satisfactory evidence, upon which 1t was cpen to the Weal Dal co Tind tetal incay Git. Lor wore. Hewever the app cd lban did not quite put its submissions in this way. Under this ground cf appeal three aryuments were tendered. In the first instance counsel contended that in the September 1977 reasons the Tribunal had made a finding of partial incapacity for work, and that 1t could not go back on this decision. Secondly it was contended that the respondent's case throughout the hearings before the Tribunal was presented on the basis of his being only partially incapacitated for work. In each instance theie was, it was submitted, a change of ground by the respondent without notice of the change being given to the appellant. Fanally counsel contended that the Tribunal misapprehended the effect of certain evidence, namely that of Dr. Chew, contained in the two medical certificates put into evidence at the final hearing and that the consequence of correctly construing these certificates was that there was no evidence at all on which a finding of total incapacity for work could be made. I will deal with each of these submissions in turn, but IT must make the comment generally that I am far from satisfied that cach of them raises a question of law. MWowever in the light ef the conclusion to which I feel bound to come there is no need for ie to analyse the submissions on this aspect of the case. The first two submissions could perhaps have been put forward as breaches of the principles of natural justice, 1.c. that natural justice wes denied to the appellant, but such an argument was not develones arc in my view could not have been put forward with any prospects of succcss. As to the submissior that the Tribunal had made a finding tec the oliect that the respondent was only partially incapacrlatent for work and was mot entlitleu ultimately to rand thet he was totally incapacitated for work, I am unable to accept this contention. Assuming however that such a finding had been made and assuming further that such a finding had the status of a determination, 1t was still open to the Tribunal to vary its determination. The Tribunal as an administrative body, being the alter ego of the Commissioner expressly directed to reconsider the decisions of the Commissioner (s.63 (1)(a)) and having for this purpose all the powers conferred on the Commissioner by the Act (s.83 (1)). By s.20 (4){a) the Commissioner "of his own motion" 1s expressly empowered to reconsidcr his deterrinations. Such powers enure Lo the Tribunal and even if the above assumpticurs be correct,.1t was open to the Tribunal to vary its determinaticn of partial 1uncapacity for work. However in my view neither assumption is justified. 1t 1s rev an my view correct to say that the Tribunal had prior to the final hearing made a determination of partial ancapacity for werk. Whis I think 1s indicated by the concluding terms of the Trahunal'te< September 1977 and January 1978 reasons already quoted which maken it clear that no determination, apart from that of the deleyata an March 1977 was made until the one made in January 1°76, Ti the Tribunal had purported to do so, it would have been in the pcsit-ci. of having made the finding in advance of hearing crucial cvidence on the topic. It had no, or at least only incomplete, evidence prior to the final hearing which would have assisted it to assves the extent of the respondent's loss of earning power. At most 1t secms to me that. the expression "partial incapacitis" was at times used somewhat loosely by the Yribunal as ardicating that the then state of evidence revealed that the respondent had some capacity to work. However, 1t would not be correct to say that at that stage the Tribunal had determined that such capacity, limited as it was, was Saleable in the market place. The correct view to my mind 1s that at the time of its Septerber 1977 reasons the Tribunal formed the opinion that the evidence to that date indicated that the claimant had not. saffFered a total loss of earning capacity, that it was still possible fer him to work, bat that it reserved the question of the value ro be placed upon his capacity for work. The Tribunal used words which indicated the nature of its then opinion, but framed 1t 1 such a way aS to label the opinion es tentative rather than f222. Tentative as it had to be until all the relevant evidence was before it. I refer to the words of paragraph 21 of the Septc ber reasons: "There 18 total incapacity for work where a man bas a physical defect which makes "11s labour ansaleable in anv market reasonebly accessible 'o him and there 1s patteal ancapacity for work when such a defect makes his !ahbcutr saleable for less than 1t would otherwise fetch (per Daxon C.J. in Commissioner tor Patlways (N.c.W.) v Agalianos (1955) 92 C.L.R. 390 at p.3¥4 - quoting Loru Lorepurn). Ilere the claimant's tanuitus has prevene d continuation of his chosen career but FT ao net think ac can be sald that 1t makes his labour vnsaleable in any market reasonably open to him. His compensation mast accordingly be assessed under s.46 and,as he is in vectirt of superannuation, under sub-section (3) of that Section. The Tribunal did not in my opinion by these words purport to preclude evidence being subsequently tendered to the effect that the respondent's capacity for work was not saleable in any moiler place and thus was of no value. This view is to my mind siunporte by the letter dated 11 Noverber 1977 fron the Clerk of the Tribunal to the respondent, a vopy of which the appcllant seceive Although the letter does nut necessarily correctly set cut the io. relevant law it does indicate that a determination or finding of partial incapacity for work had not, at least in the view of the Clerk to the Tribunal, been made. Part of the letter is as follows: "As I understand it, and I repeat that this is not a lawyers view nor to be taken as legal advice, what the Tribunal will be seeking to do at the resuned hearing is to determine: - (a) whether Mr. Scott is totally incapacitated as a result of both conditions or whether in his present state he is able to earn some income at some other employment; (b) what proportion of the z:ncapacity 18 due to the work anduced tinnitus and what portion is due to the heart condition; with a view to determining the amount of ccmpensation payable to Mr. Scott under section 46 of the Act." ~~ ' The next submission in support of the first ground of appeal was to the effect that the respundent throughout based his case on his alleged partial incapacity for work and should not be permitted to change his ground without notice to the appellant. Again in my mind there are a number of answers to this submassior.. r ) If the respondent did so base his case, it was in circumstinces where right from the outset his agent acknowledged his lack of expertise in the field covered by the Act. The Fact that sach a concession was made at the outset should in the present c1ircum- stances ensure that any subsequent change of ground Gid not operate to prejudice the respondent. Moreover in my view locse- ness of language can also be attributed to the responjent's agent. It seems to ine that the expression "partial incapacity" was again neo used correctly, but rather as indicating an acknowledgement that the claimant was physically capable of doing some work, Whether that work had any value was a matter for latex consideration. Counsel for the appellant furthcr contended that the possibility & total incapacity for work was only introduced at the very last moment by the Tribunal an the reascns for its ultimate determination. In my view this submission 1s not well founded. The submissions lodged om behalf of the respondent by letter dated 24 August 1977 before the publication of the Tribunal's September 1977 reasons fwreshadowed at least the possibility that the respondent's residual capacity had no value. The relevant portion of the letter 1s as follows: "Parstly let me deal with partial incapacitation. The Commonwealth under the Public Service Act S67, »uh-pare (1) and (2) have the capacity to deal wich officers who are incapacitated and cannot carry out the function of their office. Having dealt with Mr. W.. Scott under this section one may well construe that they felt Mr. scott was not capable of carrying out any function, least thry May well have offercd ham alternatlave cmployment. The facts of the matter are that Mr. Scott was not able ta carry out his duties, not because of sone znjyury which left him incapable mentally or physically, but because of hi: deterioration in health, due to his inzury, was incapable of carrying cut any function for the requirea amount ci hours the Commonwealth requires a scrvant to work. We susomit thal Mr. Scott was quite capable of carrying out h2s Gautics as an airworthiness surveyor, but only for a limited numox of hours per day." As abovementioned the possrbility of a sabmission oF te tral gncapacity for work was raised by the Ciezk of the Pr2bunai's leu: of 11 November 1977. The Tribunal reiterated this as a possibila in the early stages of the final hearing, before any evidence was presented and reiterated it specifically in discussion with r zr the appellant's representative. A little later in the hearing, th - respondent's agent 1n outlining the .vidence he proposed to coll, indicated that it was in reference to the respondent's "ability to earn anything at all." Furthermore, and ayain before ovidernce was presented, the res ,erecnbt'>s agent andicaled that. "we wor be vs, lookang at the sitcatron where Mr. Seott would be totally sncancbl- of holding down any job." - see ee ee - + y 12. It 218 in my view just not correct to say that total ancapacity for work was introduced for the first time in the Tribunal's reasons for its final determination, or that the respondent's case was at all times based exclusively on partial incapacity for work (as correctly understocd) or that the appellant was 1n any way prevented from adequately presenting its case through lack of notice. Such a contention was not mentioned at any time during the hearings of the Tribunal. Taking this submission at best for the appellant (and further than was expressly submitted 8 on 1ts behalf) I cannot see any indication that the appellant was denied natural justice in the procecdings. ™ The final submission in support of the first ground of aspeal was that the Tribunal had misapprehended the effect cf Dr. Chew's certificates. Such a submission would only cntail an error in law if, upon the certificates being correctly understood, there was ne evidence at all to support a finding cf total incapacixy @ for work, In my view this submission founders on two grceunse. The Tribunal did not misconceive the evidence supplied by the certificates. I accept the respondent's contention that Dr. Chew's certificates sheuld be read in the context of their being picparceen for use at the final hearing. And even 1f the Tribunal aii misconcéive this evidence there was still other evidence, part- icularly that of the respondent's colleague Mr. Robinson, upan which 2t was open for it to mae a finding of total incapacity for work. The second ground of appeal was that the Tribunal had mis- bes @icccted atseif in respect of the fact that the appellant dou uot 13. call evidence on the final hearing. As I understand the submission the crux of the complaint 1s that the Tribunal went as far as to say 1t drew an adverse inference from the failure of the appellant to put in evidence the medical report it had obtained prior to the hearing. As I said during the hearing, on one view the [fr2bunal might be seen as overstating the position, in so far as 1t indicated that it drew an adverse or an unfavourable inference. However, even 1f such a criticism 1s valid, 1t doves not avail the appellant to any significant extent. Omitting from consideration altogether this 1unference which the Tribunal said it drew, there still was evidence upon which to base the ultimate finding. ™— a Whilst I find the desire of th» Tribunal to have all possibie evidence before 1t understandable, in mv view both parties must be permitted to present their cases in the way each considers most appropriate. This is particularly so when the Tribunal has atself a raght of 2ats own volition to summon a witness (5.83 (2) (a} and 1s specifically directed to give each party a fair opportunity of presenting his case (s.20 (?) (b)). For my part I would prefer the approach indicated by Deane J. an Sullivan v Derartment cf Transpoit 00 A.L.R. 323 at p.342-343, where his Honour gaid: "In the ordinary case, a tribut:al which 1s under a duly to act judiczally and which has the relevant partacs before 1t will be best advised t9 be guided by the be in identifying the issues and to permit the parties tw present thelr respective cases in the manner which they think appropriate. Circumstances may, of course, arise in which such a statutory trabunal, in the proper perirarmance of its functions, will be chliged to raise issues which the partics do not wish to dispute and to tuteirfere, either by giving guidance os: by adverse ruling, with the manm.r in which a particular party wishes to present his case. Ordinarily, howcver, in the apscnce of a request for asi stats: or gquidarce by a party whe 1s unpearing in person, a tripunal Wet 2 Gah MG eb leather h, woe d be comecacug v0 tte fete that andue rarerlere oe. la rel amunier im hich ® pa ry conducts his case may, no matter how well intentioned, be rics P) 14. counter-productive and, indeed, even overawe and distract a party appearing 1n person to the extent that it leads to a failure to extend to him an adequate opportunity of prescnting his case." However, there 1s no doubt that in requesting the appellant to put in evidence the report, the Tribunal acted with complete propriety. In Hoggard v Worshrough District Council 1962 2 Q.B. 3 at p.100 Wann J. said: "Where two parties are in dispute, and it 1s the obligation of some person or body to decide caquitably between th competing claims, each claim must receive consideration and each claimant must be invited - not merely left to take the initiative 1f he chooses ~ to put forward the matcrial in the form of documents or accounts which he desires to have con3+dered; and he must be afforded un opportunity of making comment on the material put forward by rival claimants and which the council are proposing to consider." In the present case the preferred approach of the Tribunal in circumstances where there was evidence that the respondent had shortly before the hearing been examined by a medical practitiourr nominated by the appellant, would have been to enquire whether the appellant proposed to call the practitioner or to put the repert in evidence. The witness not having been called and the report not having been put in, the Trabunal was entitled te cenel: that the findings on this cxamination were not inconsistcnt with the case as presented by the respondent. The fact that a recont examination did not. produce eviderice inconsistent with the respond- ent's case was avallable to be used as confirmatory of the zinding made in reliance on the respondent's cvidence. Again, on this aspect of the case, in my view therc 158 evidence cr some looseness oF language on the part of the Trac Admittedly it stated that 1t would draw an adverse infercnes bat this statement 1s subsequently qualified. Moreover assuming such an inference to have been drawn, the inference is not essential to . 15. the ultimate finding of total capacity of work. Such a finding was open, as I have said, on other evidence, and the exclusion of this adverse inference, assuming 1t to be correct to see it as the consequence of a mis-—direction, does not place in jcopardy, (as an error of law), the Tribunal's ultimate conclusion. In my op1znion the appeal should be dismissed with costs. : tcertity Indl us aac sne [4 gra, Que ' wot lft pages are a Le copy Gt abed or Judume ntof Mr Jestor on ee a Lived he Dated / 9. "4