van Oostveen, William v Comcare [1998] FCA 60

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 179 of 1996

oN APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: COMCARE

Respondent

JUDGE: RYAN J

DATE OF ORDER: 9 February 1998

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS: 1. That the application be dismissed. 2. That the applicant pay the respondent's costs, including any reserved costs, such costs to be taxed in default of agreement. Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 179 of 1996

oN APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE

ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: COMCARE

Respondent

JUDGE: RYAN J

DATE: 9 february 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT This is an application by way of appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") from a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent, Comcare Australia ("Comcare") disallowing a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The applicant, who had been an employee of Australian Construction Services ("ACS") from 21 November 1989 until 20 March 1992, lodged three distinct claims for compensation: (a) on 30 November 1993 for the skin condition, lichen planus; (b) on 23 May 1994 for stress and anxiety; and (c) on 19 July, 1994 for injury to his back, allegedly arising out of a motor vehicle accident in 1990.

The Tribunal in its reasons for decision ("the reasons") after reviewing the evidence, much of it medical, found the applicant not to be a witness of truth, and went on to find that there was no basis for a claim that work-related stress had resulted in his being incapacitated for work. The Tribunal also concluded that there was no evidence to indicate that the skin condition lichen planus, from which the applicant periodically suffered, had been worse during the period of his employment at ACS. While the Tribunal accepted that there was a possible causal relationship between lichen planus and stress, it did not find that any alleged increase in the applicant's level of stress could be attributed to his work. Any such increase in stress it found was rather a result of the applicant's withdrawing from a methadone program. The Tribunal also found that no link had been established between a 1990 motor vehicle accident in which the applicant had been involved and the back pain which he claimed in July 1994 to have suffered. Consequently the Tribunal affirmed the decisions to refuse compensation to the applicant. Mr Searle of Counsel for the applicant did not make a direct attack on the Tribunal's findings on the applicant's claim for compensation for injury to his back, confining his submissions to the findings of the Tribunal on the issues of work-related stress and lichen planus. He submitted first that the Tribunal had erred in law in concluding that the stress and anxiety which the applicant claimed to have suffered had not been work-related. The Tribunal's reasoning on that issue was: 31. The Tribunal did not find the applicant to be a truthful witness. There is little doubt that throughout the period of the applicant's employment at ACS, he was on a methadone program, although it would appear that that information was not made available to a number of medical practitioners to whom he had been sent for assessment or management. In spite of his own evidence, the Tribunal accepts the evidence of Dr Freed that the applicant has a long history of substance addiction and the Tribunal does not accept the explanation that he had used heroin solely to be able to be put on to the methadone program for treatment of his nervous stress. It is clear from the evidence that the application [sic] had been subjected to many episodes of physical trauma, with possible brain damage, during the period 1978 to 1992 and there was no evidence that any of the head injuries had occurred as a result of work related trauma. Having heard the evidence of Dr Gorham and Ms Conrad, and having considered the medical evidence and listened to the evidence of the applicant, the Tribunal is unable to accept that the current condition of the applicant has resulted from work related stress during the period of his employment at ACS, between 1989 and 1992. Those medical reports, which have indicated a possible link between events at work and the described stress have relied entirely on an inaccurate history given by the applicant. In this regard it should be noted that we have already stated earlier that we did not find the applicant to be a truthful witness. We accept the evidence of Ms Conrad that the applicant had submitted his resignation on a voluntary basis and we note that a certificate provided by Dr Scragg a few days prior to that resignation, had stated that the applicant was unfit for work as a result of withdrawal from the methadone program. No other basis for incapacity was stated and no other medical evidence has been produced to indicate that the applicant has been otherwise incapacitated for work since that time. Also, as Dr Frame had stated in his report of 27 September 1991, it was very important that the applicant remain in employment. Dr Frame clearly did not believe that the applicant was then incapacitated for work. As withdrawal from the methadone program was in no way related to his work with ACS, we find that there is no basis for his claim that work related stress has resulted in incapacity for work. The decision under review will therefore be affirmed. Mr Searle contended that three errors of law were disclosed by the paragraph just quoted. In a written submission it was argued, first, that the Tribunal had erred in making no findings to sustain the conclusion that the medical records relied upon to indicate a possible link between events at work and stress had "relied entirely on an inaccurate history given by the [applicant]". Secondly, Mr Searle submitted that the Tribunal had erred in concluding that the applicant's stress had been caused by a withdrawal from a methadone program when there was evidence before the Tribunal that the applicant remained on a methadone program. The third error imputed to the Tribunal was that it failed to make a finding of fact whether various episodes of physical trauma suffered by the applicant had resulted in his sustaining brain damage. Mr Searle further submitted that the Tribunal had erred in law in concluding that there was no evidence to indicate that the applicant's skin condition lichen planus had been caused by his employment at ACS nor that it had been worse during that period. In Comcare Australia v Peter Wilson (unreported, 26 June 1997) I observed at 13: It is sufficient for the purposes of s. 43(2B) of the AAT Act for the Tribunal to refer in a summary way to the evidence on which its findings of fact have been based and to allow some parts of that evidence to be gleaned by inference. The sub-section is in these terms: 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. In Polites v Commissioner of Taxation [1988] 2 ATC 5029 Lockhart J noted, at 5032: I have observed a distinct and growing tendency in this Court when appeals are brought from administrative tribunals including appeals on a question of law from the Administrative Appeals Tribunal under subsec. 44(1) of the Administrative Appeals Tribunal Act, for the Court to be asked to construe the tribunal's reasons for its decision minutely and finely and with an eye keenly attuned to the perception of error. The Administrative Appeals Tribunal is required by para. 43(2B) of the Administrative Appeals Tribunal Act to include in its written reasons for decision "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based". I repeat what has been said by other members of this Court in the cases mentioned below and by myself on more than one occasion, that when this Court hears appeals from administrative tribunals - which are the bodies entrusted by Parliament with the task of reviewing decisions of a particular administrative character - the Court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole. I agree with the view expressed by Fisher J. in Blackwood Hodge (Aust.) Pty. Ltd. v. Collector of Customer (N.S.W.) (No. 2) (1980) 3 A.L.D. 38 at p. 49 with respect to a decision of the Administrative Appeals Tribunal relating to the Customs Tariff: It is my firm view that this Court when hearing appeals from a Tribunal constituted for the purpose of reviewing decisions of this nature, should adopt a restrained approach. Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision. This does not mean that when an error of law is identified, the court should be reluctant to intervene. In fact, it is under a duty to do so. Rather it should heed the comments of Davies LJ (as he then was) in R. v. Industrial Injuries Commissioner; Ex parte Amalgamated Engineering Union (No. 2) [1966] 2 Q.B. 31 at 50: I should like to echo the words of my Lord, Lord Denning MR, in saying that I deprecate the practice, and hope it would not continue, of attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by the various bodies and authorities set up under the Act of 1946. As Lord Radcliffe said in Edwards v. Bairstow [1966] A.C. 14 at 38: