The Broken Hill Pty Co Ltd v Jessop, Terrence Maxwell [1998] FCA 207

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 878 of 1997

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: THE BROKEN HILL PROPRIETARY COMPANY LIMITED

(ACN 004 028 077)

Appellant

AND: TERRENCE MAXWELL JESSOP

Respondent

JUDGES: RYAN, HILL and EMMETT JJ

DATE OF ORDER: 4 MARCH 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS: 1. That the appeal be dismissed. 2. That the appellant pay the respondent's costs of the appeal, 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

NEW SOUTH WALES DISTRICT REGISTRY NG 878 of 1997

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: THE BROKEN HILL PROPRIETARY COMPANY LIMITED

(ACN 004 028 077)

Appellant

AND: TERRENCE MAXWELL JESSOP

Respondent

JUDGES: RYAN, HILL and EMMETT JJ

DATE: 4 MARCH 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT RYAN J: This is an appeal from an order of a single Judge of the Court remitting to the Administrative Appeals Tribunal ("the Tribunal"), an application for compensation pursuant to the Seafarers' Rehabilitation and Compensation Act 1992 ("the Act"). The issues raised by the appeal are in short compass. It is not disputed that the respondent, Mr Jessop, on 5 September 1994 struck his right knee against the open door of a dishwashing machine while working as a cook on the ship Iron Carpentaria operated by the appellant, The Broken Hill Proprietary Company Limited. Shortly after that incident the respondent was put ashore and since then has been examined or treated by a large body of medical practitioners and other health workers, including orthopaedic surgeons, neurologists, three specialists in rehabilitation medicine, a rheumatologist and two psychiatrists. After reviewing evidence received from most of those medical practitioners, either orally or in the form of medical reports, the Tribunal concluded in paragraphs 31 and 32 of its reasons: 31. Essential to accepting the diagnosis of Dr Pollack, and also that of Dr Griffith, is an acceptance of the applicant's history of events. For reasons expressed below I do not accept the applicant's evidence in its totality. 32. I am in no doubt that on the morning of 5 September 1994 the applicant struck his right knee on an open dishwasher door in the galley of the Iron Carpentaria. As indicated above there is, however, conflicting evidence as to the sequelae of that blow. The following paragraphs recite events, evidentiary discrepancies and other matters which the Tribunal apparently regarded as militating against its acceptance of the respondent as an entirely credible witness. However, with the exception of paragraph 39 where it is accepted that the respondent climbed down the pilot ladder to the launch which was to put him ashore, and was not lowered by means of a harness as the respondent claimed, paragraphs 33 to 42 do not indicate which parts of the respondent's evidence were accepted and which were rejected. The concluding paragraphs of the Tribunal's reasons are in these terms: 43. During the course of his evidence Dr Pollack presumably said that he had discussed the applicant's case with Dr White as part of a multi-disciplinary pain clinic to which the applicant had been referred. He stated that Dr White had indicated that he would be prepared to revise his opinion if Dr Pollack's diagnosis of reflex sympathetic dystrophy proved to be correct. As I am not satisfied on the balance of probability that causalgia, as hypothesised by Dr Pollack, is the cause of the applicant's present disability I need not consider what Dr White's revised opinion may have been had it been adduced by either party. 44. Taking into account all of the evidence I find that the applicant's behaviour aboard the Iron Carpentaria was so abnormal that the Master decided that in the interests of safety, both of the vessel and its crew, and that of the applicant, he should be evacuated from the vessel. To this end the Master turned the vessel around and back tracked towards Portland in Victoria, a step which was not taken lightly. Since that time the applicant has continued to experience symptoms out of proportion to the original injury. Medical opinion is divided but even his treating specialist Dr Pollack admits that there are no objective signs to account for a major reaction to what was minor trauma. Dr Griffith also states that there are no objective states to support his diagnosis and his opinion must be contrasted with that of Professor Holland. Dr Pollack has an hypothesis as to cause but is not confident as to this being the explanation for the applicant's pain. I do not profess, in the plethora of medical reports before me, to adduce to what is the cause of the applicant's pain but I am not satisfied that its cause is the minor blow suffered by the applicant aboard the Iron Carpentaria on 5 September 1994. The decision under review will, therefore, be affirmed. The learned primary judge imputed to the Tribunal an error of law constituted by a failure contrary to s 43(2B) of the Administrative Appeals Tribunal Act 1975 to "include its findings on material questions of fact and a reference to the evidence or other material on which those findings are based." I accept what was said by Lockhart J and the other authorities collected by the same learned judge in Polites v Commissioner of Taxation (1988) 2 ATC 5029, where it was observed at 5032: 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 tasks 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 Fisher J in Blackwood Hodge (Aust) Pty Ltd v Collector of Customs, (NSW) (No 2) (1980) 3 ALD 38 at p 49 with respect to a decision of the Administrative Appeals Tribunal relating to the Customs tariff. And then his Honour quotes from that judgment: 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 QB 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 Bairstowe [1966] AC 14 at 38: ...by the system that has been set up the commissioners are the first tribunal to try and appeal and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The court is not a second opinion, where there is reasonable ground for the first. To those references Lockhart J added Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 per Lockhart J at 251; per Sheppard J at 255; Steed v Minister for Immigration (1981) 4 ALD 126 per Fox J at 127 and Federal Commissioner of Taxation v Cainero 88 ATC 4427; (1988) 19 ATR 1301 per Foster J at ATC 4430-4431; ATR 1305-1306 and Lockhart J said: I agree with all those statements made by members of this Court from time to time. I content myself with noting that in Federal Commissioner of Taxation v Cainero (supra), Foster J referred to Bisley Investment Corporation v Australian Broadcasting Tribunal (supra) and continued at 4431: Quite clearly, in Bisley, the Full Court (Lockhart, Sheppard and Morling JJ) were of the view that sec 43(2B) imposed no requirement upon the Tribunal in its statement of reasons to refer specifically to all findings of fact made by it. It was obviously regarded as sufficient if such findings could reasonably be inferred from the Tribunal's statement of reasons in the context in which they were given. As Sheppard J said (at p 255): The section does not impose upon the Tribunal, which is often composed of members who are not trained in the law, any standard of perfection. I consider the provisions of the section to be directory rather than mandatory. Substantial compliance is what is required and clearly that is here present. In the present case, the learned primary Judge after noting that the Tribunal is to be assumed to have found that the respondent suffered an "injury" within the meaning of the Act, went on to observe: