s0nesesvcveosecees: JUDGMENT No. L290 1 628 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NG 86 of 1998 BETWEEN: DAVID RICHARD HOUSE APPLICANT AND: DEFENCE FORCE RETIREMENT AND DEATH BENEFIT AUTHORITY RESPONDENT JUDGE: EINFELD J DATE: 25 MARCH 1998 PLACE: BRISBANE REASONS FOR JUDGMENT At the relevant time for this matter, the scheme of the Defence Force Retirement and Death Benefits Act 1973 (Cth) provided for the Defence Force Retirement and Death Benefits Authority (the Authority) to determine the "percentage of incapacity in relation to civil employment" of a person receiving an invalidity payment. Recipients of invalidity payments were classified according to the determined percentage. Section 30 of the Act provided that if the percentage of incapacity was assessed at 60 per cent or more, the recipient was classified in class A; if the incapacity was assessed at between 30 per cent and 60 percent the recipient was classified in class B; if the incapacity was less than 30 per cent, class C was applied. Section 34(1) of the Act provided that the Authority may, from time to time, alter the percentage of incapacity and consequently reclassify the recipient according to section 30. Section 34(1A) set out the matters which the Authority was to consider in making the assessment of the percentage of incapacity. Paragraph (c) stated that the Authority shall have regard to: the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil -2- employment referred to in paragraph (b); Section 34(1B) defines "prescribed physical or mental impairment" as, in part: (a) a physical or mental impairment of the member that was the cause or one of the causes of the invalidity or physical or mental incapacity by reason of which the member was retired; The applicant in this matter, David Richard House, is the recipient of an invalid payment and has been making claims to the Authority in respect of his classification under the scheme for many years. It appears that his movement in the classification categories has a history of some 20 years or thereabouts. He was first classified in class B in 1986 with a 30 per cent incapacity determined as having commenced on 30 May 1975. In December 1986 he reverted to class C with effect from 16 January 1987. That decision to reclassify the applicant was reviewed and the subsequent confirmation appealed on a question of law right up to a Full Court of the Federal Court. In the result, a new determination was made in May 1990 of a class C classification (20 per cent incapacity) from 10 November 1989. This classification then went on review to the Administrative Appeals Tribunal where in March 1992 a three-person Bench presided over by Bulley J (which I shall call the 'Bulley Tribunal') set aside the decision and re-classified the applicant in class B with 35 per cent incapacity from 16 January 1987 and 40 per cent incapacity from 10 November 1989. The matter has been considered and reconsidered on a number of occasions since the determination of the Bulley Tribunal, including a review in February 1994 by another Tribunal of the Administrative Appeals Tribunal presided over by Senior Member Muller (which I shall call the 'Muller Tribunal'), but the applicant has remained in class B with a 40 percent incapacity ever since that time. There was another classification review on 23 May 1995, a reconsideration of that decision on 27 October 1995, and yet another review by the Administrative Appeals Tribunal presided over by Senior Member Purcell on 16 June 1997 (which I shall call the 'Purcell Tribunal'). All confirmed the applicant's continued classification at 40 per cent under class B. Although argument has been addressed in the course of this proceeding concerning the Bulley and Muller Tribunal decisions, the matter before the Court is the legal correctness of the decision of the Purcell Tribunal, and not the decisions of the Bulley and Muller Tribunals. It is the decision of the Purcell Tribunal alone which is now before this Court on appeal. I give that explanation because one of the arguments raised in this matter was the failure of the Purcell Tribunal to explain its determination that the applicant should remain on the 40 per cent classification set by the two earlier Tribunals. It has been said that the Purcell decision gives no explanation as to how it reached its 40 per cent conclusion, and did not explain, as it is said to be bound to do, how it arrived at that figure. There is no doubt that assessments of incapacity must be determined in an objective manner in the sense that they must be determined on the evidence on the issue, but it is inevitable that an element of subjectivity will be brought into the assessment in that in many cases it is extremely difficult to be precise as to what a percentage disability is, and reasonable minds will differ in making the assessment. However, the Purcell Tribunal was entitled to take into consideration the views formed by the Bulley and Muller Tribunals — and indeed the views of the delegates of the Authority who made the decisions prior to each of those considerations and, to the extent relevant, those who reconsidered those delegates' decisions, This is because what the Purcell Tribunal was considering was the provision by section 34(1) as to whether the classification should be "altered" and whether he should be "reclassified" as the applicant desired. The applicant's wish in the matter is that he be reclassified at the 60 per cent threshold appropriate for Class A which he says would entitle him to an increase in payment of the order of $150 a week. The Purcell Tribunal's determination necessarily had to reflect the effect of the evidence brought before it on whether the Class B classification at 40 per cent incapacity should be altered. In other words, it commences from the position that as at the time of the decision of the delegate which it was reviewing, namely on 23 May 1995, a decision had to be made whether the condition of the applicant had so deteriorated as to call for an alteration and reclassification as provided in section 34(1). The Purcell Tribunal's consideration had to reflect, as is required by section 34(1A) the kinds of employment which a person of the applicant's skills, qualification, and experience might -4. reasonably undertake. In this regard, its task was simplified by the concession made by the applicant at the hearing before the Purcell Tribunal that the kinds of civil employment he might reasonably undertake are "driver, operating equipment, plant, and machinery, work requiring a mechanical aptitude, work as a subcontractor in mining and construction, foreman in any of those fields, and storeman",. These are set out in paragraph 12 of the Purcell Tribunal's decision. There is no dispute that the applicant is suffering from alcoholism and has been suffering from that condition for a number of years. There is also no dispute that he has been diagnosed as suffering from a form of what is called personality disorder. The point that he sought to argue before the Purcell Tribunal was that these conditions were quite separate and disparate, and that the assessment of his disability due to his alcoholism, which is admitted to be a relevant condition for present purposes, ought to be considered separately and distinct from the disability or incapacity brought about by his personality disorder. To my way of thinking, this is entirely a question of fact, and for that matter it is a question which lay persons could not conceivably determine without access to expert medical evidence. It is not for lay people to make assessments of whether alcoholism and a psychological or psychiatric illness are the same or inter-connected on the one hand or are separate prescribed impairments on the other. As it turns out, the various Tribunals have found that these conditions are inter-connected and not disparate. In the Bulley Tribunal's decision it was expressed in this way: The Tribunal has anguished over this aspect of the proceedings...In the ultimate analysis, we are not persuaded that as a separate condition, personality disorder should be included as is submitted. There are certain signs and symptoms of the applicant's alcoholism such as aggression, a "can't be bothered attitude" and anger which are personality traits. However, there are other sequentia of alcoholism such as impairment of memory, impulsiveness of thinking and lack of mental agility which are all present in the applicant. To categorise the personality traits as in combination constituting a personality disorder being a cogent separate mental impairment is, we feel, not justified on the totality of the evidence and the weight we attach to it. On the other hand, the Bulley Tribunal had taken into account a number of conditions as -5- causally connected with the applicant's retirement impairments, including splenectomy, fractured left humerus, head injury, and a tear to the left diaphragm. The Purcell Tribunal adopted the Bulley Tribunal's reasoning and rejected the applicant's identical submission about the personality disorder. _ So far as concerns the allegation by the applicant that he suffers from a severely disabled left arm condition which he submitted to me was itself a cause of 40 per cent incapacity for work, the Purcell Tribunal was confronted with the evidence of Dr Stephenson quite unanswered or uncontradicted by any other evidence, that the power and flexion of the applicant's left arm was quite normal and his extension minimally reduced. Dr Stephenson found that the applicant had a perfectly normal range of movement at the shoulder. As a consequence, the Purcell Tribunal found that there was no evidence to indicate that the applicant's left arm condition, whatever it was, had deteriorated in such a way as to cause an alteration of the assessment of his percentage incapacity. The Purcell Tribunal noted that the only evidence that the applicant's condition had deteriorated — and here I assume in favour of the applicant that the Tribunal was talking about any of his conditions — was from the applicant himself. The Purcell Tribunal noted that on the applicant's own evidence he is not receiving treatment for his conditions and that he had not provided any medical evidence in support of his claim for reclassification. The transcript, it said, provides an additional concession by the applicant that most of his conditions additional to alcoholism are not causing him any additional incapacity for work. The Tribunal noted that Mr House has been in constant employment for the past 21 years, has taken only one sick day since May 1995, and had an employer who stated that there are no medical impairments to the applicant's ability to perform his work to the employer's satisfaction. The Purcell Tribunal also noted that the applicant had not been convicted of any alcohol-related offences since 1986, and continued to drive his car to work without incident. It accepted Dr Stephenson's opinion that the applicant was moderately incapacitated, and that there was no clear evidence that his alcohol condition was worsening. The applicant informed me that he did have a conviction for drink driving in 1996 or 1997 after the decision being considered by the Purcell Tribunal, indeed after the Tribunal itself had pronounced its -6- reasons for decision. It cannot therefore be considered now as an indication that his condition had so altered as to call for the Purcell Tribunal to re-classify him 'with a greater percentage than had been the case before. The applicant complained that the Tribunal has in substance come to its conclusion without good reason, perhaps even whimsically. He alleged that evidence that he did present was not considered, referring to three statements which he submitted to the Tribunal. It is correct to say that the Tribunal in its decision did not make any reference to these statements. I have, however, considered the statements which appear in the appeal papers. One of them, undated, came from a Mr B. Kettling, warehouse manager of a firm called Boustead Fasteners. He says that he has known Mr House for approximately five years, and went on: It has come to my notice the deterioration in his mental capacity and physical appearance. He arrives at work red-eyed and of unkempt appearance some mornings. He has lost some of his ability to concentrate on the task to be done. When having a conversation with him, he has trouble finding the words to express himself and I have to prompt him, Also he has had arguments with some fellow workers which I believe was part of the reason for a store worker resigning. Also if Dave is doing a job and is interrupted for a short time, he has to be reminded of the job he was doing before the interruption. A second undated statement came from a Mr R.D.L. Payne, who the applicant informed me was his brother-in-law. Mr Payne said that he has known Mr House for a period of ten years, that his drinking problem has got worse over this period, that when he drinks now his behaviour is intolerable and unbearable, and that he is argumentative all the time when he is drinking such that he will not allow his daughter or himself to "hop" in the car, when he is driving. For most of the time, he is intoxicated. Mr Payne has seen the applicant drink all day Saturday and all day Sunday, to all hours of the morning. He drinks through the week, sometimes 10 to 12 cans a night, especially Tuesday and Thursday nights when he gets very argumentative and violent to his friends and family, and no one will be around him. There is a statement also from Mr House's wife, Irene House, dated 8 May 1996 which suggests to me that the statements of Mr Kettling and Mr Payne were prepared after the date of the delegate's decision under consideration by the Purcell Tribunal. Mrs House says that her husband has been difficult and very hard to live with for the past ten years: He drinks constantly, is very violent and abusive against myself and his step- son, Shane. He comes home from work drunk. She does not know how he drives. He drinks all the weekend to all hours, even to the early hours of Monday morning before going to work. Most times he has gone to work drunk on Mondays. It is getting too much to cope living with a constant drunk. He does not know when or how to stop. Apart from the fact that these statements appear to have been submitted to the Tribunal after the delegate's decision, they would be matters which the Tribunal would be entitled to take into account, especially as they cover a period going back, in the case of the family ten years, in the case of Mr Kettling five years, but they do not provide any material upon which it can be said that the applicant's capacity for work is reducing. They merely demonstrate what is well known as a feature of alcoholics — that the alcohol is causing him to be argumentative and violent and a very difficult person to be with. It is a matter of passing interest that the applicant himself says that he usually goes to work on Monday not drunk, although he does say that he often goes to work "as sick as a dog", no doubt after the weekend's drinking. Nevertheless, driving is a part of his employment and although he seems to have had a drink driving conviction last year after the consideration by the Tribunal, if it were true that he is a dangerous driver going to and from work or during the course of his work and for the purpose of his work, it is difficult to imagine that he has not had an accident or a serious run in with the authorities. It is even more difficult to imagine that his employer allows him to drive to and from work and during his work probably with the employer's vehicles if he is intoxicated. I must also add, although it is also only of passing relevance, that the applicant has presented. to me some detailed written submissions on this matter and some even more detailed oral submissions. It should be noted that there are two appeal books in this matter which finish at page 499. They contain a large amount of material, including all or much of the transcript before the hearing at the Purcell Tribunal and presumably all of the exhibits. Mr House has shown himself to be very much on top of this material with an extremely comprehensive -8- knowledge of its content. I wish that all counsel who appeared in court had as comprehensive a knowledge of the material on which they were addressing as he had, which is no criticism of counsel who appeared for the Authority in this matter who as usual was thoroughly and comprehensively prepared and whose detailed written submissions were supplied to the Court in advance and have been very helpful. But the fact is that Mr House has shown himself to be anything but alcohol affected in the course of the presentation of this argument. I note in this connection that the case is being heard on a Wednesday at a time when Mr House says he is normally hopelessly intoxicated. He certainly has not been in that condition here in court. I make that observation because of course the Tribunal was entitled to take into account the evidence and submissions which Mr House gave to it. The Tribunal noted that his evidence was that he never drank on Mondays, nor in the morning except at weekends, but that he did drink every Tuesday, Thursday, Friday, Saturday and Sunday. I suppose I should be grateful that this case is on a Wednesday. He purchases three cartons of full strength beer, 30 cans per carton and bottles of Tia Maria and Ouzo weekly. He said, the Tribunal noted, that he spends approximately $200 a week on alcohol and $100 on cigarettes. He never eats breakfast but has biscuits for morning tea. He eats dinner at the weekend in the form of steak or sausages, beans, potatoes and peas. He takes his wife to Bingo on Fridays and sometimes to the hotel on Saturday afternoon. He told the Tribunal that it takes him 15 to 20 minutes to drive to work each day and presumably the same time to drive home and that he is sometimes "as blind as a bat" as he drives to work. The Tribunal noted that on most days of the week it is part of his duties to drive to the post office and collect the company's mail unless his supervisor considers that he is inebriated at the time. The Tribunal found in this connection that the applicant's ability to ensure that Mondays are alcohol free days is not indicative of an alcoholic whose condition is deteriorating as claimed. They found that he was an articulate and intelligent presenter of his arguments and of his submissions. He was described as a determined and forthright man convinced of the justice of his cause. I am equally impressed by his capacity to argue and present submissions and of his determination to obtain justice, but my task is to consider only whether the Purcell Tribunal erred in law in making the findings that it did. -9. I have said why I do not believe it erred in law in coming to the view that his classification should not be altered from the 40 per cent that applied at the relevant time. I have also explained why I do not consider that it erred in law in not making mention of the statements of Mr Kettling, Mr Payne and Mrs House. The applicant has argued that although virtually every finding, indeed the whole of the Purcell Tribunal's decision, represents findings of fact, its findings of fact were so grossly inappropriate or unjustified or unsupported by evidence that a question of law arises which this Court should consider. He has been unable to point to any finding of fact which could possibly be so categorised. He says that Dr Stephenson failed to test the capacity of his left arm or at least failed to do so to an extent as would enable the doctor to form a conclusion about the extent of that disability. If so, there is no way I can deal with it. I have not heard Dr Stephenson in court. He has not been cross-examined before me and the correct place to have made that point was before the Tribunal while Dr Stephenson was in the witness box. In any event, if he has a major disability in his left arm, such as would cause that disability to be assessed at 40 per cent, let alone to link it in with the matters required here as to make it an appropriate injury, it would be necessary to bring specific expert evidence directed towards that disability and its causes. The Purcell Tribunal was considering the position as at May 1995. We are now almost three years on so that a consideration of the applicant's condition today would basically not be of any assistance in determining what his condition was so long ago. The Purcell Tribunal considered that it was appropriate to take into account subsequent events to the extent that they may throw light on the matters which it had to consider and I see no error in its approach on that basis. Indeed it was a generous approach to the applicant because he says that his alcoholism is deteriorating all the time. If the Tribunal had come to any such conclusion, it may have made an alternative finding at the end of its reasons. In the circumstances, I can find no error of law by the Tribunal. In particular, I give attention to the notice of appeal which identified four errors of law which I will not now detail because I have considered them in the course of these reasons. I have also considered the particulars requested of the applicant's notice of appeal by the respondent's solicitor and which he has -10- supplied. To my way of thinking, none of these matters raises a question of law. At any rate none makes out a true question of law in the circumstances of the Tribunal's actual findings. For those reasons the appeal from the Tribunal's decision will be dismissed. [AFTER DISCUSSION] The applicant is to pay the respondent's costs of the application. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld Associate: Mt ' Dated: 30 June 1998