Hughes v Australian Postal Corporation [2002] FCA 1645

FEDERAL COURT OF AUSTRALIA

Hughes v Australian Postal Corporation [2002] FCA 1645 DAVID HUGHES v AUSTRALIAN POSTAL CORPORATION N1054 OF 2002 MADGWICK J 10 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1054 of 2002

BETWEEN: DAVID HUGHES

APPLICANT

AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 10 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal be set aside. 2. The matter be remitted to the Administrative Appeals Tribunal, as previously constituted, for reconsideration in accordance with these reasons for judgment. 3. The respondent is to pay the applicant's costs of the appeal to this Court. 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 N1054 of 2002

BETWEEN: DAVID HUGHES

APPLICANT

AND: AUSTRALIAN POSTAL CORPORATION

RESPONDENT

JUDGE: MADGWICK J

DATE: 10 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("the AAT") made on 6 September 2002 affirming the decisions of the Australian Postal Corporation dated 25 February 2000 and 23 May 2001 in relation to the applicant's claims for compensation under the Safety, Rehabilitation & Compensation Act 1988 (Cth) ("the Act"). 2 The applicant was an employee of the respondent at its Silverwater Delivery Centre and at the relevant time it was his job to remove mail from bins, unload large letters from bags into bins and then sort the letters into pigeon holes for postal delivery officers to collect them for ultimate delivery to their addressees. On 3 January 2000 the applicant started work at about nine o'clock and some time later, perhaps around midnight, he was found on the floor after a witness had heard a noise. The applicant's claim was that he slipped "on something on the floor", fell and was injured in that fall. 3 He was taken by ambulance to Auburn Hospital and it is common ground that he was diagnosed as having sustained a fractured skull. Mr Hughes had in fact had a fractured skull many years earlier and it seems that the doctor on duty at the hospital misread an x-ray. The applicant seems to have been something of an unreliable witness, before the AAT, having apparently contradicted himself as to some matters and having said things that were contradicted by more contemporaneous records that apparently appealed to the relevant member of the AAT. 4 The proceedings, it is fair to say, had their genesis in somewhat messy paperwork. For an employee such as the applicant, the Act prescribed in s 14 that: "Subject to the Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." Section 16 adds a liability in Comcare to pay compensation in relation to reasonable medical treatment whether or not death, incapacity or impairment resulted from the injury. 5 The first relevant document seems to have been an "Incident Report" dated 4 January 2000 and, in a part thereof intended to be completed by the subject employee, in answer to an instruction to "describe how the incident happened", the following statement appears: "I trod on an inner [roll?] from a roll of paper and lost my balance and fell flat on my back." After a paragraph that invites information to be given as to "nature of injury or illness apparent at time of report and part of the body affected" there is reference to "pain, neck and head" and to "back, neck and back of head". However, that page was signed by the applicant's supervisor, Ms McGlynn, who completed the rest of it as his supervisor. In the course of her report in the same document, as I understand it, she said: "Dave was emptying large letters into PDO's trolley when he slipped on a cardboard roll and fell over." There is then a document headed "Claim for Compensation Witness Statement" which refers to the result of the accident as "frac[t]ured skull" and a CT scan report is attached, together with a medical certificate dated 4 January 2000 which gave, as the opinion of its author, that the applicant was suffering from "fracture[d] skull". There is a fitness for work certificate from a Dr Scott (prepared for the respondent) dated 5 January 2000 which certified Mr Hughes as fit for full duties with no restrictions from 7 January 2000 but his own GP, Dr Gardner, on 6 January 2000, certified him as totally unfit for work from 6 January 2000 to 17 January 2000. On 17 January, Dr Gardner certified that he was fit to resume his pre-injury duties on 18 January. 6 A "Claim for Rehabilitation and Compensation" asserting as an injury "fractured skull" was signed by Mr Hughes and dated 5 January. On 18 January an officer of the respondent responsible for processing compensation claims denied liability on the basis that "your head injury is older than 3/1/00". On 14 February the applicant wrote to the respondent saying: "In reply to your letter dated 18.1.2000 I wish to put in an objection to your refusal of workers [compensation] from 3.1.2000 to 17.1.2000. I did slip on something on the floor and was injured in that fall and taken by ambulance to Auburn Hospital. I also hurt my head, neck, shoulder and back. I was kept in hospital for 32 hours for necessary observation after which I went to work, home and to see your Doctor. I then went to see my family doctor, Dr R. Gardner, who said I was unfit for work 6.1.2000 to 17.1.2000 and statements from hospital xray reports. I did slip on the floor causing my injuries. I was off work on doctors advice with medical certificates. Please reconsider original [decision] and grant me workers compensation plus my expenses for this time off. I have enclosed copies of all certificates and paper work to help your [decision]." This letter was dealt with by an officer of the reconsideration section of the respondent's who commenced his response as follows: "Reference is made to your letter dated 14th February 2000 requesting reconsideration of decision dated 18th January 2000 in respect of "FRACTURED SKULL" injury sustained on 3/1/00. Having regard to the evidence before me ... I hereby AFFIRM the decision of the delegate dated 18th January 2000 and determine that Australia Post is not liable to pay compensation." The relevant officer continued by referring to some of the evidence and he concluded: "Based on the evidence as a whole, I am not satisfied that you have sustained an injury at work. I therefore affirm the decision of 18th January 2000 and determine that Australia Post is not liable to pay compensation." On 1 May 2000 Mr Hughes submitted another "Claim for Rehabilitation and Compensation", attaching a certificate dated 28 April from Dr Papatheodorakis which apparently described him as suffering from a sore neck and shoulder and recommended that he perform restricted duties for a period of time. The compensation officer responsible for processing the claim dealt with the matter by saying: "I assume you are claiming compensation for neck and shoulder pain which you attribute to the alleged fall at work on 3/1/00." 7 The officer favoured the applicant with certain "questions which I ask myself" about the claim which would seem to question the genuineness of the applicant's neck and shoulder pain rather than of the fall or initial injury and concluded: "I find that your claim for compensation is not credible, and I determine that Australia Post is not liable under section 14 of the Act to pay compensation to you in respect of any injury to the neck or shoulder." 8 The applicant sought a review by the AAT of the original decision of 25 February 2000 in proceeding numbered by the AAT as N2001/25. In relation to the second claim, the applicant sought an internal reconsideration by Australia Post which was unsuccessful, and the reconsidering officer seems to have limited the reconsideration solely in relation to the determination of 11 May 2000. That reconsideration occurred on 23 May 2001. 9 Mr Hughes then made a claim for compensation in respect of permanent impairment and non-economic loss and another officer of the compensation section, by letter of 15 June 2001, purported to vary "the determination of 5.5.00" which, as far as I can make out, is a reference to a determination in a letter of 11 May 2000 which reads as follows: "Australia Post is not liable to pay compensation to Mr Hughes in respect of any injury to the neck and shoulder. The denial of liability encompasses all relevant provisions of the Act, including sections 14, 16, 19, 20, 21, 24, 25 and 27." From all of these three final reconsideration rejections the applicant ultimately appealed to the AAT, as he was entitled to do pursuant to s 64 of the Act. In addition to proceeding N2001/25 to which I have referred, the AAT had before it N2001/704 which was an appeal against the reconsideration decision of the respondent of 23 May 2001, which was understood to relate to an alleged injury to the neck and shoulder, and N2001/924 which was understood to refer to the claim for permanent impairment.