Wade v Comcare [2002] FCA 305

FEDERAL COURT OF AUSTRALIA

Wade v Comcare [2002] FCA 305

ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal – whether the respondent is liable for the applicant's orthopaedic spinal condition, neurological condition, vascular condition and post traumatic stress disorder – whether the Tribunal erred in law in failing to find that an alternative claim of general anxiety disorder was made out – whether the applicant was denied natural justice – whether the Tribunal limited the evidence of the applicant – whether the Tribunal erred in law by being biased against the applicant – whether there was a causal connection between the applicant's condition and the fall in 1961 Commonwealth Employees' Compensation Act 1930 (Cth) JEFFREY KENNETH WADE v COMCARE No Q 60 of 2000 SPENDER J BRISBANE 20 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 60 OF 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: JEFFREY KENNETH WADE

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 20 MARCH 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 60 OF 2000

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: JEFFREY KENNETH WADE

APPLICANT

AND: COMCARE

RESPONDENT

JUDGE: SPENDER J

DATE: 20 MARCH 2002

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal by Jeffrey Kenneth Wade (Mr Wade) from the affirmation by the Administrative Appeals Tribunal (the Tribunal) on 13 June 2000 of a determination by Comcare of 20 August 1986 to not accept liability for an orthopaedic spinal condition, a neurological condition, a vascular condition and post traumatic stress disorder. 2 The Tribunal was constituted by Deputy President D.P. Breen, Dr J.B. Morley and Captain E.T. Keane. 3 Mr Wade conducted his own case before the Tribunal and before this court. The amended notice of appeal states that the questions of law raised on the appeal are: "(a) THE TRIBUNAL ERRED IN LAW ALTERNATIVE CLAIM OF GENERAL ANXIETY DISORDER WAS MADE (b) THE APPLICANT WAS DENIED NATURAL JUSTICE THE TRIBUNAL LIMITED THE EVIDENCE OF THE APPLICANT (c) THE TRIBUNAL ERRED IN LAW BY BIAS AS TO THE APPLICANT'S WITNESSES EVIDENCE BEING CONSIDERED BEFORE BEING HEARD" 4 The notice of appeal seeks: "(a) THAT THE COURT DIRECT THE MATTER BACK TO THE ADMINISTRATIVE TRIBUNAL (b) THAT THE COURT DIRECT THAT THE MATTER BE HEARD AS SOON AS IT IS POSSIBLE TO DO SO BY THE TRIBUNAL (c) THAT THE COURT MAKE SUCH ORDERS AS TO COSTS AS IT DEEMS PROPER 5 Mr Wade claimed that the four medical conditions he was suffering were caused by a fall from his bunk on HMAS Melbourne on 10 September 1961 during rough weather in the Tasman Sea. It was common ground that such a fall had occurred. [The injury from the fall was accepted to be a personal injury which occurred in the course of Mr Wade's employment within the meaning of s 9 of the Commonwealth Employees' Compensation Act 1930 (Cth).] However, before the Tribunal, Comcare contended that there was no causal link between Mr Wade's present condition and the fall from the bunk, and that all expert medical opinion supported this contention. 6 Mr Wade gave evidence and produced written statements by a number of his former naval colleagues, three of whom gave oral evidence before the Tribunal. In a statement that was before the Tribunal, Mr Wade alleged that he had a very limited recall of events from the time of the fall on 10 September 1961 until May of 1963; that after the fall he suffered severe headaches and blackouts; that since his discharge from the Navy (which was on 11 April 1962) he has suffered severe headaches; and that the period from about October 1961 to May 1963 is best described "as a hazy dream of events". Mr Wade says that in 1981 a sudden twisting motion caused him to experience a severe lower back pain and that, prior to this event, he had occasionally experienced lower back pain. Mr Walter Pridmore, who had been a naval colleague of Mr Wade, records that, after Mr Wade had been thrown from his bunk, he complained of being unwell and suffering back and leg pain and bad headaches. Over the next couple of months, Mr Pridmore said that Mr Wade became vague, his happy demeanour became increasingly moody and he continually complained of head, back and leg pain. 7 Mr Jack McDougall, in a statement dated 12 April 1999, records that, shortly after he returned from the trip on the HMAS Melbourne during which Mr Wade had experienced the fall from his bunk, he: "…often seemed to get bad headaches at that time and he had complained to myself and other friends with us of having a sore back as well …" and also: "…his attitude of the happy go lucky kind of person he was up until the accident had changed …" and described his outlook after his fall as "Morose". 8 Another colleague from the early 1960's, Mr Ronald West, said in a statement that in late 1961, after Mr Wade had had the accident on the HMAS Melbourne, he saw Mr Wade in Sydney and: "At that time he was mentally not the same guy I was used to talking to. He had difficulty concentrating on anything for long and complained about bad headaches and back pains." 9 In evidence before the Tribunal, Mr Wade called two medical practitioners. The first of them, Dr O'Malley, saw Mr Wade in December 1961 and confirmed that at that time he seemed "lethargic, perhaps depressed". The second was Dr David Jenkins, a psychiatrist, who also provided a written report. Dr Jenkins stated in his report: "Mr Wade is describing symptoms of a Generalized Anxiety Disorder but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this. He did provide me with two letters, which go towards confirming that he did develop anxiety following on the back injury. There also is a history of his being investigated for blackouts and a medical report from Dr McGeorge indicates an opinion that he felt these were organic rather than functional and at that time Mr Wade was taking Dilantin." 10 The most important ground relied upon by Mr Wade on the appeal arises out of the oral evidence of Dr Jenkins, who expressed the view, in response to questions from Mr Wade: "…I would think, on the balance of probabilities, it is reasonable to say that your generalised anxiety disorder dates back to the frightening experience of the vessel being hit by a freak wave and knocking you out of your bunk." 11 Almost immediately after that statement, counsel for Comcare asked Mr Jenkins concerning his report: "The Deputy President of the Tribunal asked you initially, right, in respect of that second-last paragraph, 'Mr Wade is describing symptoms of a generalised anxiety disorder, but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this?'" Dr Jenkins replied: "Yes, I think it still has to say that, yes." 12 In relation to the claimed disability because of his back condition, Comcare relied on medical evidence from a number of medical practitioners. Dr McPhee expressed the view: "The claimant suffers from degenerative lumbar spondylosis. On the balance of probability this is consitutionally based. There is no evidence of focal injury. There is little evidence either historically or on radiography to support a claim for significant back injury." 13 That conclusion is supported by a report from Dr Nutting and a report by Dr Ho, and is consistent with the view of an orthopaedic surgeon, Dr Graham Anderson. So far as his psychiatric condition was concerned, Dr John Chalk, a psychiatrist, expressed in a report dated 2 March 1999 that: "This 57 year old man does not suffer from an Axis I psychiatric disorder related to the fall from his bunk in 1961. I do not think that he currently suffers from an Axis I psychiatric disorder but rather he has had long standing interpersonal difficulties and has a mixed disorder on Axis II. I do not think he has a compensable injury related to his service." 14 Dr Chalk denied a suggestion by Mr Wade in oral evidence that: "forgetting or not remembering about the accident, or anything like that, is that not a symptom - could that not be associated with greater anxiety disorder?" and said to Mr Wade: "certainly memory loss is not a symptom of generalised anxiety." 15 Dr Leigh Atkinson, a neurosurgeon, in a report of 18 February 1999, stated: "I consider this man suffered a minor closed head injury when he fell from the bunk on 10 September, 1961." Dr Atkinson expressed the opinion that: "I do not believe that the employment has contributed to his headaches, his blackouts, his memory loss or his behaviour changes." 16 On the evidence before it, the Tribunal found: "Considering, firstly, the claimed vascular conditions of chronic leg ulcers, pulmonary embolism and deep vein thrombosis, there was not sufficient medical evidence presented to the Tribunal to allow it to make any link, on the balance of probabilities, between the fall from the bunk and these vascular conditions. As such, it is the Tribunal's finding that these conditions have not been established as arising from the applicant's employment." 17 These findings are findings of fact and there was no serious attempt on the appeal to assert any error, even factual, in these findings. So far as the claim of post traumatic stress disorder was concerned, the Tribunal noted the evidence as to altered personality but then said, importantly: "However, the medical evidence on the matter was quite clear that this condition was not related to a fall from the bunk." 18 The Tribunal noted that Dr Jenkins, in his oral evidence, agreed that Mr Wade did suffer from anxiety and that it may have dated back to the incident on the ship. The Tribunal continued: "Also, he thought that it was reasonable for there to have been some memory loss for up to two years after the injury to the head." Nonetheless, the Tribunal said: "However, this did not alter his [Dr Jenkins'] opinion in his report that 'Mr Wade is describing symptoms of a generalised anxiety disorder, but in view of his memory lapse it is difficult to offer any definite opinion about the cause of this.'" 19 The Tribunal referred to the opinion of Dr Chalk and, in particular, to his view that a person could not suffer post traumatic disorder in relation to an event they do not remember. The Tribunal noted that Mr Wade was: "very clear in his evidence that he does not actually remember falling from his bunk." The Tribunal said: "As such, although the applicant may suffer from some anxiety, the medical evidence is clear that there can be no finding of post traumatic stress disorder arising out of his service with the Navy." 20 The Tribunal found, in respect of the claim for a neurological condition, that: "…it is the Tribunal's view that on the balance of probabilities, the neurological condition is not related to the incident in 1961 and so not related to the applicant's employment." This finding is a finding of fact which is founded on the evidence before the Tribunal, the correctness of which gives no basis for interfering with the Tribunal's conclusion. So, too, the Tribunal found that the "back condition" claimed by Mr Wade is not related to his fall in 1961 and "it did not arise in the course of his employment." 21 The Tribunal formed an adverse view of Mr Wade's credibility. It expressed the opinion: "Mr Wade's own evidence was often vague, unreliable and self-serving. It is the Tribunal's finding, therefore, that Mr Wade is not a credible witness and without any conclusive medical evidence to support his claims he cannot succeed." While Mr Wade disagrees with the finding of the Tribunal in relation to credibility, which is the basis of his assertion of bias, the assessment of the credibility of witnesses is a matter for the Tribunal and no legal error has been demonstrated in the findings of fact which the Tribunal reached. 22 The only aspect of Mr Wade's application to this court which requires further consideration is his contention that the evidence of Dr Jenkins fairly raised the question of a general anxiety disorder which had a causal connection to the fall in September 1961. It is alleged that, notwithstanding that Mr Wade's claim was for post traumatic stress disorder, on the material before the Tribunal it ought to have considered, and failed to consider, whether Mr Wade was suffering from a general anxiety disorder causally related to the fall in September 1961. 23 In respect of this aspect of the matter, Mr Wade was informed by the Tribunal that any claim he made would not be compromised by a failure to ascribe the correct diagnostic label to the condition which was the subject of the claim. It is true that Dr Jenkins said: "…your generalised anxiety disorder dates back to the frightening experience of the vessel being hit by a freak wave and knocking you out of your bunk." 24 Notwithstanding this evidence, however, the Tribunal was entitled to note that Dr Jenkins stated in his written report that because of Mr Wade's memory lapse it was difficult to offer any definite opinion about the cause of Mr Wade's anxiety disorder, and that Dr Jenkins, after giving the evidence just set out, confirmed that his report still has to say that it is difficult to give any definite opinion about the cause of his generalised anxiety disorder. When this opinion is coupled with the report of Dr Chalk, another psychiatrist, that Mr Wade did not describe any current anxiety symptoms and that any condition of generalised anxiety disorder could not be caused by the fall from the bunk, it is clear that it was open to the Tribunal to make the findings which it did in pars 9 to 12 of its judgment, the effect of which has been set out above. 25 As to the complaint of a denial of natural justice, the transcript of the hearing before the Tribunal shows that Mr Wade was given a full opportunity to present his case, and the adverse finding of credibility was a matter within the competence of the Tribunal. No reviewable error has been demonstrated in the findings of the Tribunal, and the appeal must be dismissed with costs, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.