FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal decision finding liability to pay compensation for impairment arising from a work related injury - whether error of law - whether failure to give consideration to relevant factors - whether Browne v Dunn should be applied in proceedings before administrative tribunals. Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 19(4)(c), 19(4)(e) Browne v Dunn (1893) 6 R 67, dist AUSTRALIAN POSTAL CORPORATION v MURRAY KING NG 452 of 1997 DAVIES J 12 FEBRUARY 1998 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 452 of 1997 BETWEEN: AUSTRALIAN POSTAL CORPORATION Respondent AND: MURRAY KING Respondent JUDGE: DAVIES J DATE OF ORDER: 12 FEBRUARY 1998 WHERE MADE: SYDNEY MINUTES OF ORDER THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 452 of 1997 BETWEEN: AUSTRALIAN POSTAL CORPORATION Respondent AND: MURRAY KING Respondent JUDGE: DAVIES J DATE: 12 FEBRUARY 1998 PLACE: SYDNEY REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal in relation to a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal found in favour of Murray King, the respondent in these proceedings, and held that the Australian Postal Corporation ("the Corporation") was liable to pay compensation to Mr King for total incapacity during the period 1 August 1995 to 31 October 1995, and that Mr King had a 28% whole person permanent impairment arising from a work related injury of 13 September 1991. The Tribunal remitted the matter to the Corporation to determine Mr King's entitlement to compensation as a result of the Tribunal's decision. I do not propose to set out the facts in any substance. This case, like others, involves a great deal of detail, but it is sufficient to say that in September 1991, when he was working as a counter officer with the Corporation, Mr King suffered an injury to his back as a result of lifting a heavy parcel. He was off work for a short time. Subsequently, he took a position with the Corporation as a sales representative. He gave evidence that, nevertheless, during 1992, his back remained sore, that he felt his duties were not doing his back any good, and that approximately every 12 months his back symptoms would flare up. Mr King gave evidence that he attended the Vilano Rehabilitation Centre in 1993, where he was given traction, heat treatment, chiropractic manipulation of the spine and therapeutic exercises. He said that his back improved thereafter, but he still suffered from limited movement and lifting capability. Mr King gave evidence that, in 1994, he became aware of stabbing pain and pins and needles inside his left buttock at the hip joint and in the left leg. He consulted a Dr Chan who referred him to physiotherapy. Also in 1994, he had another flare up of his condition and he consulted a Dr Moss in October of that year. Towards the end of 1994, Mr King decided not to continue as a sales representative. A number of factors appear to have led to that decision. Mr King said that the work troubled his back in a number of ways. He also suffered some stress in handling the work. He applied for a position with the Corporation as a postman. A report was given by the manager of the Penrith Delivery Centre recommending the transfer. The manager noted that Mr King was seeking transfer as he found the selling role too stressful. The manager stated that Mr King's problems in performing the duties of a salesperson were not unique and that the role of interfacing with customers, seeking their business, dealing with complaints and so on was not an easy task. Before that recommendation was put into effect, a voluntary redundancy was offered to Mr King and he took that redundancy. He was then self employed. He had some interest in furniture manufacture and in car detailing. On 1 August 1995, when lifting his child, his back condition was exacerbated again and he then sought medical treatment. A Dr Moss later provided a Work Cover Certificate for his absence from work between 1 August 1995 and 31 October 1995. Mr King's case before the Tribunal was that he was permanently incapacitated during that time. I do not propose to go into all the medical evidence. The evidence which was accepted by the Tribunal and which the Tribunal was clearly entitled to accept was that Mr King had suffered an injury to his back in 1991 and that that injury had caused or contributed to his incapacitation in August 1995. A Dr Daymond gave evidence that there was a definite probable connection between his 1991 workplace injury and his incapacity from August to October 1995. Dr Daymond said that he believed that Mr King had an initial tear of the annulus in 1991 and that this was a situation where further problems could occur with heavy lifting. A Dr Sloane reported that Mr King had suffered a soft tissue injury involving the muscles and ligaments of the lower back as a direct result of the incident described at work in September 1991. As a consequence, Mr King had sustained a permanent back injury which, by the time Dr Sloane reported in August 1996, required Mr King to wear a brace even while working in a modified occupation. Dr Moss also put in a number of reports as did other medical practitioners. The Tribunal found that the incapacity of 1995 was a sequelae to the injury of September 1991 and that Mr King had been totally incapacitated for work during the months of August, September and October 1995 and had suffered a permanent impairment to his back. The argument put in these proceedings concentrated principally on s 19(4)(c) & (e) of the Safety, Rehabilitation and Compensation Act. Those provisions read: "(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: ... (c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; ... (e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;" It was submitted to me, as it was submitted in the Administrative Appeals Tribunal, that Mr King's employment with the Corporation as a salesperson was suitable employment, and that, in some way or other, the fact that Mr King had accepted voluntary redundancy affected his position. In my opinion, that submission misunderstands the operation of s 19(4). The incapacity with which s 19 is concerned is the incapacity for which compensation is being sought. That incapacity in the present case was the incapacity of August to October 1995. It was not the incapacity during September 1991, for which Mr King had already received compensation. The position of salesperson for the Corporation was quite irrelevant. Mr King was not offered that position during August to October 1995, nor was it suggested that there was any other position which was open to him which he failed to take up. The Tribunal found in fact that during that period Mr King was totally incapacitated for work. There was no other suitable employment available or relevant. I should perhaps go on to add that the submissions with respect to suitable employment were based upon the proposition that during his time as a sales representative, Mr King had undertaken tasks for which no formal requirement of the job required him to do. He assisted customers with whom he dealt by taking parcels from time to time to and from the premises. Counsel for the Corporation submitted that employment does not become unsuitable simply because an employee decides to undertake tasks which he or she is not obliged to do. That was of course not the only matter which Mr King, in the course of his evidence, said made the work unsuitable. He said that he had picked up parcels and took them to and from customers' premises but also that he found that his back twisted getting into and out of his car, and that this had caused problems. He said furthermore that he had found the work stressful and had difficulty in coping with it. The Tribunal found that the work as a salesperson with the Corporation was not suitable work for Mr King. In view of the fact that Mr King had initially sought other employment and had then accepted a voluntary redundancy to get away from the work as salesperson, it seems to me that this Court could not say that there was any error in the Tribunal's finding. However, as I have said, in view of the Tribunal's finding that Mr King was permanently incapacitated during the relevant period, the question of suitable employment was irrelevant. Another challenge was put on the basis that the Tribunal did not give proper attention to the case against Mr King and failed to give any reasonable consideration to relevant factors. Reference was made to the evidence of a Ms Cameron who had also worked as a sales representative and who gave evidence that bringing the mail back from customers into the post office was not part of the job, although occasionally a sales representative would assist a customer. Ms Cameron also said that Mr King had never said anything to her about his back condition. Mr Lennon, a sales representative, said that Mr King had never complained to him that he was suffering from back pain. A Mr Jocys gave evidence to like effect. A Mr B Shannon, General Sales Manager for the Corporation, said it was not part of a sales representative's function to take materials to a client and certainly not the sales representative's duty to collect mail from a client. It was submitted that this was powerful evidence destroying the claims of Mr King as to what he said he did in the course of his duties as a sales representative, and as to the effect those duties had upon his back. With respect to these matters, however, it seems to me that they were only part of the evidence before the Tribunal which the Tribunal had to take into account. The Tribunal was confronted with medical evidence which stated that an injury had occurred from the lifting event in 1991 and that that injury had led to permanent impairment and was a cause of the incapacity suffered from August to October 1995. Accordingly, the evidence that I have mentioned did not destroy the case. Counsel also argued that the Tribunal failed to give any proper attention to a medical certificate that Mr King had received following attendance at the Pacific Medical Centres on 7 September 1990, for treatment for right sided back pain. It appears from records of the Corporation that Mr King had seven hours away from work as a result of that event. It was noted on the medical certificate that the event was not work related. Mr King was cross‑examined about this matter but said that he could not remember the event. It seems to me that that evidence did not destroy Mr King's case. The medical evidence which was before the Tribunal related his impairment and incapacity to the injury which had occurred in September 1991. The fact that there may have been a back problem of a minor sort in 1990 does not show that injury did not occur in 1991. The Tribunal did not ignore any of these matters or the evidence given by the witnesses that I have mentioned. These matters were all discussed at length in the Tribunal's decision, and it is clear that the relevant matters were taken into account. The final matter which was raised by counsel for the Corporation was that, according to counsel, the Tribunal adopted a Browne v Dunn type of approach when the Tribunal said in paragraph 53 of its reasons for decision: "The Tribunal is mindful that counsel for Mr King never put the question to Mr King that his credit was at issue. The Tribunal accepts that Mr King had some difficulty in remembering details of circumstances many years ago when he was faced with a very lengthy and extensive cross-examination by counsel for Mr King. Taking all of these matters into consideration, the Tribunal is satisfied that Mr King attempted to answer the questions put to him honestly, forthrightly and to the best of his ability. It follows that the Tribunal rejects the submission for Mr King that Mr King's evidence is not reliable and the Tribunal finds Mr King to be a credible witness." It is not clear to me that that passage has any particular significance. Counsel for the Corporation had cross-examined Mr King at length and had suggested that Mr King's evidence was unreliable rather than, in a confrontationalist way, suggesting that Mr King was deliberately untruthful. In his address, counsel for the Corporation had said: "We say firstly for various reasons Mr King's evidence is not reliable and there are many instances which would cause anybody that has the duty to decide according to the evidence to doubt the veracity of the evidence but in any event to find the evidence is not reliable." It may be that all the Tribunal was conveying in paragraph 53 was that it accepted that Mr King gave evidence as he could remember it. The Tribunal, in any event, did not ignore other considerations and noted at paragraph 51 that: "Mr King submitted that these points demonstrated that Mr King was not only inconsistent in his answers to questions put to him during his testimony, but also demonstrated that Mr King was at times evasive and prepared to exaggerate his circumstances, or consciously manipulate or conceal the fact in respect to his circumstances, so as to assist his case for compensation." I see no question of law arising out of these matters. I think that an experienced lawyer would have expressed the point that the Tribunal was making in a different way, but this is an appeal from an administrative decision. The Administrative Appeals Tribunal has members who are not lawyers, and the member constituting the Tribunal in the present case was not a lawyer. I do not favour the application of the Browne v Dunn principle, except in clear cases, and I certainly am of the view that it is not generally an appropriate principle for strict application in proceedings before administrative tribunals. I doubt that I would have expressed the first sentence in paragraph 53 in the terms the member did, but the Tribunal member was the decision-maker of fact. The application will be dismissed with costs. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies Associate: Dated: 12 February 1998 Counsel for the Applicant: Ms RM Henderson Solicitor for the Applicant: Australian Government Solicitor Counsel for Mr King: Mr AJ Philpot Solicitor for Mr King: Beilby Poulden Costello Date of Hearing: 12 February 1998 Date of Judgment: 12 February 1998