FEDERAL COURT OF AUSTRALIA COMMONWEALTH EMPLOYEES' COMPENSATION - appeal from Administrative Appeals Tribunal - applicant awarded compensation for 1986 injury in common law proceedings - applicant made subsequent claim for compensation in respect of 1989 injury under the Safety Rehabilitation and Compensation Act 1988 (Cth) - Tribunal found that the applicant had already received damages "in respect of" the 1989 injury as a part of the "matrix of facts" relating to the 1986 claim - whether Tribunal misdirected itself as to the proper question to be answered - distinction between damages in "respect of injury" and for incapacity Safety Rehabilitation and Compensation Act 1988 (Cth), s 48 BERNARD MCINTYRE v COMCARE NG 310 of 1997 MADGWICK J 12 FEBRUARY 1998 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 310 of 1997 BETWEEN: BERNARD MCINTYRE APPLICANT AND: COMCARE Australia RESPONDENT JUDGE(S): MADGWICK J DATE OF ORDER: 12 FEBRUARY 1998 WHERE MADE: SYDNEY MINUTES OF ORDER THE COURT ORDERS THAT: 1. The proceedings be remitted to the Administrative Appeals Tribunal to be determined in accordance with law. 2. The respondent pay the applicant's costs of the Appeal to the Court and of the Notice of Motion before the Administrative Appeals Tribunal. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 310 of 1997 BETWEEN: BERNARD MCINTYRE APPLICANT AND: COMCARE RESPONDENT JUDGE(S): MADGWICK J DATE: 12 FEBRUARY 1998 PLACE: SYDNEY EX-TEMPORE REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: This matter raises a narrow but interesting question. It arises in an appeal from the Administrative Appeals Tribunal constituted by Deputy President McMahon. The AAT had before it an application to review a reconsidered decision of the respondent given on 13 November 1995. The primary decision-maker had rejected the applicant's claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) lodged by him on 26 June 1995 in respect of "back strain (sciatica) pain, 11 March 1989 and 25 May 1989 due to nature and conditions of employment". Mr McIntyre, the applicant, had been an assistant cook employed by the Department of Defence. He had at various times asserted four injuries to his back in the course of his employment, occurring respectively on 2 August 1986, 22 June 1987, 11 March 1989 and apparently 25 May 1989. In 1989 the applicant commenced proceedings in the District Court of New South Wales against the Department of Defence alleging negligence by the defendant in respect of his 1986 asserted injury. The proceedings were transferred to the Supreme Court and the defendant was renamed as the Commonwealth of Australia. The case was ultimately settled on 17 May 1995 by payment of a sum to Mr McIntyre such that the inference arises that he was actively pursuing a claim at least for partial incapacity for work extending past 11 March 1989. The medical evidence then available to Mr McIntyre and his solicitors, Messrs Walsh and Blair, was that the incapacity following the incident of 11 March 1989 was attributable to the 1986 injury. That was also the revised view of the respondent which at first had made a determination upholding a claim for compensation made by Mr McIntyre in April 1989 in respect of the 11 March 1989 incident. Large amounts of incapacity payments and medical expenses had been made and attributed to the 1989 incident. However, in April 1993 Messrs Walsh and Blair by letter advised the respondent that their client had not sustained any disability as a consequence of the 1989 incident and the respondent issued a revised determination attributing responsibility for those payments back to the 1986 injury. The Statement of Claim in the common law action said nothing about any 1989 injury. The formal Part 33 particulars filed in February 1993 also said nothing about any 1989 injury. It was, however, alleged that - "the plaintiff has been (apart from several weeks) totally incapacitated for work from the date of the accident [this can only mean the 1986 accident] to date and continuing. The plaintiff claims total economic loss (apart from the several weeks that he worked for the defendant) from the date of the accident to date and continuing. . ." In April 1993 the Australian Government Solicitor acting for the defendant in the common law proceedings became aware for the first time of the 11 March 1989 injury and sought to have the proceedings, listed to commence on 27 April 1993, adjourned. By another letter of 23 April 1993 the Australian Government Solicitor sought various particulars of the injury of 11 March 1989 and, in paragraph 6 of that letter, asked: "Has the plaintiff been involved in any prior or subsequent industrial or motor vehicle accidents? If so, please provide details of the accident and any injury or disability resulting therefrom." Walsh and Blair replied expansively. They pointed out that the Australian Government Solicitor had for some years had in its possession medical reports which mentioned the incident of March 1989. They continued: "We note that the Plaintiff has had ongoing back problems since the injury complained of in the Statement of Claim, namely that which occurred on 2.8.86 and all the doctors who have seen the Plaintiff on behalf of his lawyer and on behalf of the defendants have concluded his ongoing problems relate entirely to this original accident. This is notwithstanding the fact that medical reports refer to various specific incidents of further incidences (sic) of further episodes of more severe pain following specific incidents such as the one which occurred on 11 March, 1989 when the Plaintiff was manhandling a milk urn." The letter then proceeded to answer the numbered requests for particulars but this was done in a rolled-up form and the following was said of the 11 March 1989 incident: "The increase in pain which the plaintiff felt when manhandling the urn returned to its pre-accident level the following morning. ie. the flare-up ceased and the plaintiff returned to work the next morning. He was not hospitalised nor did he receive any treatment that the plaintiff recalls and sustained no loss of wages as a consequence of this incident ie. the days lost wages was lost as a result of the injury sustained on the 2 August, 1986. He sustained no disability as a consequence of the incident on 11 March, 1989 nor did he recieved (sic) any workers compensation, sick payments nor suffer any incapacity, it is alleged as a result of this incident." In specific answer to question six (set out above) the following was said: "The previous accident of the Plaintiff have (sic) been described in detail, it and its subsequent episodic flare-ups they being the subject of the current proceedings." Section 48, so far as relevant, is as follows: "(1) This section applies where: (a) an employee recovers damages in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which compensation is payable under this Act; or . . . (4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be." On a Notice of Motion before Deputy President McMahon, the question to be answered was whether the material justified a finding that Mr McIntyre had recovered "damages in respect of an injury" to himself which had occurred on 11 March 1989. The learned Deputy President considered the matter fully. He posed the overall test to himself unexceptionably. He said: "What has to be shown to disentitle the applicant to compensation is that he recovered damages 'in respect of an injury ... in respect of which compensation is payable under this Act'. The phrase 'in respect of' is one of wide meaning." He continued: "One does not need to rely upon an extravagant interpretation [of section 48 of the said Act] to come to the conclusion that the 1989 incidents were the subject of a Supreme Court action and that damages in respect of them were recovered by the applicant. If there be a need to refer to the context of the words in s 48, it is clearly that Parliament has continued the provisions (found in the Act's predecessor) to prevent 'double-dipping'. The 1989 incidents were part of the matrix of facts relevant to the legal conclusion represented by the terms of settlement of the common law action. They were important enough to be referred to in medical reports supplied to the defendant's solicitors and were important enough to be salient features of the negotiations leading to the settlement. Having regard to the width of meaning to be ascribed to the phrase 'in respect of' and having regard to the evident purpose of sub-section 48(4), it is clear that the applicant has recovered damages in respect of injuries for which he now seeks compensation under this Act." The learned Deputy President applied the notion that proceedings which are "obviously so untenable and manifestly groundless as to be utterly hopeless" may be regarded as vexatious. That test had been authoritatively adopted by the Tribunal comprised of Matthews, Beaumont and Hill JJ in Re Williams v The Australian Electoral Commission (1995) 38 ALD 366. Such was the burden of Comcare's application, by the Notice of Motion, to have Mr McIntyre's appeal to the AAT dismissed. The applicant submits that the Tribunal made two errors of law. The first is that, properly understood, there was no material from which the learned Deputy President could conclude that Mr McIntyre had recovered damages in respect of the 1989 injury. The second is that the learned Deputy President misdirected himself in regarding the fact that the 1989 incidents had "formed part of the matrix of facts relevant to the legal conclusion represented by the terms of settlement" as decisive of the question at issue which was simply and solely: were damages recovered in respect of the 1989 incident? It is beyond argument that the phrase "in respect of" can have a wide meaning. This is made clear by the judgment of Deane, Dawson and Toohey JJ in Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642. However, the key point of that judgment is that the phrase takes it meaning from its context. In my view, with respect to the learned Deputy President, the context of s 48 is more complex than he appears to have allowed. It is true that, in a broad sense, the purpose of s 48 is to avoid injured persons obtaining both damages and compensation for the one injury but, in the nature of things, sometimes the results of injuries or their full seriousness take a long time to become apparent. Hence, there is a need to examine closely and precisely whether an injured employee (or, I might add, a dependant in the case of a deceased employee) is disentitled from receiving compensation under the Act by reason of an award of damages. As formally constituted, the common law proceedings could only have permitted the recovery of damages in respect of the 1986 injury. There was no formal document incorporating the 1989 injury as one of the results of that earlier injury. Of course, it is a common, indeed everyday occurrence, and well-sanctioned in law (see Willis v Commonwealth (1946) 73 CLR 105) that a later injury can be treated as the compensable sequel of an earlier one which primarily gives rise to the liability of a defendant to pay compensation. It would be wrong, however, in my view, to confine consideration of the matter to the formal documents. The reality of litigation in New South Wales of the kind in question is and was that formal particulars as required by Part 33 of the Rules of the Supreme Court of New South Wales are and were often supplemented by particulars given in letters between solicitors. The question is whether what emanated from Messrs Walsh and Blair amounted to the incorporation of the 1989 injury in the common law proceedings as a claimed, compensable sequel of the 1986 incident. It seems to me that what Walsh and Blair were concerned to do was to incorporate the 1989 incapacity (and the subsequent incapacity) as a consequence of the 1986 injury as to which it was alleged that the defendant had been negligent, and that, therefore, there was a liability in the defendant to pay damages for loss of wages (instead of mere weekly compensation), pain and suffering, and perhaps damages for a voluntary carer based on Griffiths v Kirkemeyer (1977) 139 CLR 161. Mr McIntyre's solicitors were concerned that that incapacity should not be attributed to the 1989 injury. They were not, it seems to me, seeking to have the 1989 injury treated as a compensable result of what had occurred in 1986. It is true that it is possible to read some of the imprecise language in the letter as if that was their intention, but it will be seen that such language was not really appropriate to the question they were purporting to answer. Hence, there is a powerful argument that the applicant did not recover "damages in respect of [the 1989] injury". However, the first supposed error is whether there was any material that enabled a contrary answer and I think it is clear that there was. It seems to me however that the second of the errors of law suggested has been made out. It was in the interests of Mr McIntyre as plaintiff to have as little concern as possible given to the 1989 injury in the proceedings arising out of the 1986 injury. It was not the 1989 injury which was likely to be a "salient feature of the negotiations leading to the settlement"; it was the incapacity following the 1989 incidents and whether it could be attributed to the 1986 incident, which would be relevant. The 1989 incidents were no doubt part of the matrix of facts which, in a forensic way, were "relevant" to the quantification of the award of damages by agreement which constituted the settlement, but s 48 does not ask whether an employee has previously recovered damages in respect of incapacity now asserted to have been due to the injury in respect of which it is sought to obtain compensation. It does not need to: only incapacity resulting from a qualifying injury may be compensated; if the incapacity was attributable to another injury (whether or not damages have been had in respect of it) and not to that in respect of which the claim is made, it will not be compensated as the result of that injury. Mr McIntyre never asserted that his incapacity sued on in relation to the 1986 accident related to the 1989 injury. He now wishes to say quite the contrary. It may be that events have occurred which make it convenient for him so to say. He may have very grave difficulty, one would think, in overcoming the earlier and more contemporaneous evidence of causation and his own urgent pleas, via his solicitors, that what was wrong with him had nothing to do with the 1989 injury. However, I cannot assume that, in that respect, his case is so hopeless as to warrant its summary dismissal as vexatious. He may have different and credible medical evidence to support his present stance. He may have some credible explanation other than desperation for his changed attitude. He may have none of those things. He may face other legal challenges to his present claims. But, with due respect, it seems to me that the learned Deputy President was distracted by legal considerations of the "relevance", in a forensic sense, of the 1989 incidents to the 1986 injury from correctly answering the question he had correctly framed as requiring an answer. Although there was some faint material which could enable a conclusion the other way, on application of the correct legal test, Mr McIntyre must, as a practical matter, have succeeded in the application before the Deputy President. In the circumstances, s 48 does not in limine disentitle him from receiving compensation. Not without some regret, having regard to the likely ultimate merits of the matter, the conclusion to which I have come is that the appeal should succeed. The proceedings should accordingly be remitted to the Administrative Appeals Tribunal to be determined in accordance with law; in that regard, the application for summary dismissal made to the Administrative Appeals Tribunal is to be regarded as having failed. The respondent is to pay the applicant's costs of the appeal to the Court and of the Notice of Motion before the Administrative Appeals Tribunal. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick Associate: Dated: 12 February 1998 Counsel for the Applicant: J Drummond Solicitor for the Applicant: Walsh & Blair Counsel for the Respondent: C Adamson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 February 1998 Date of Judgment: 12 February 1998