Repatriation Commission and David Moss - No. G130 of 1981 Administrative Law
1982 ALR 553(Judgment by: Fox J)
Repatriation Commission v David Moss
Court:
Judges:
Fox JDeane J
Fitzgerald J
Judgment date: 22 April 1982
SYDNEY
Judgment by:
Fox J
The Repatriation Commission appeals pursuant to s.43 of the Administrative Appeals Tribunal Act, 1975 on a point of law, against a decision of that Tribunal that the respondent is entitled to a pension in respect of tuberculosis. The matter came before the Tribunal on a reference by the President of the Repatriation Review Tribunal under s. 107VZZB(1) of the Repatriation Act, 1920.
The respondent Mr. Moss was born on 3 April 1922. He left school when 15, after completing his Intermediate Certificate. He enlisted as a member of the Forces in June 1941 and served until April 1946. After his discharge he did some timber felling and banana farming in Queensland, although for what periods is not clear.
For some months in late 1947 he worked as a machine driver in an underground gold mine in Queensland, and left that position to work as an underground machine operator for the New South Wales Metropolitan Water, Sewerage and Drainage Board in a project which included the construction of a large tunnel.
Soon after reporting for that position an x-ray disclosed pulmonary tuberculosis and he was put into hospital. On 21 January 1948 his tuberculosis was accepted as due to war service and a pension for him was assessed at the statutory minimum of 100% of the "General Rate". After release from hospital, he took up clerical work, and started a part-time course in accountancy. He soon had a recurrence of tuberculosis, and after discharge from hospital on this occasion did not resume the accountancy course. He started work as a stock clerk and did well in that activity, getting over a time a series of better positions and a degree of promotion. His lack of education and formal training have in recent years operated as a handicap, and his earnings have fallen back relative to those of people with higher qualifications. The Tribunal found that it was a case "where, because of his tuberculosis, he was precluded from continuing in the type of work to which he was most suited, that is to say, some form of outdoor or semi-outdoor work in which he could ultimately develop to foreman or executive status." It went on:
"We think that that limitation upon him is an incapacity for which an assessment is justified."
On 1 November 1978 the Repatriation Acts Amendment Act, 1978 came into force. By that Act s.37 of the Repatriation Act, 1920 (which provided specially for pensions for pulmonary tuberculosis) was repealed. In its place a series of sections of the 1978 Act (secns. 37-41) were enacted to deal with that disability. Sub-sections (1), (2) and (4) of s.40 are as follows:
"(1) In this section, 'review', in relation to a pension, means a review conducted under section 31 of the Repatriation Act 1920 for the purpose of -
- (a)
- assessing the nature, and probable duration, of the incapacity in respect of which the pension is payable; and
- (b)
- assessing the appropriate rate of that pension having regard to -
- (i)
- the assessment referred to in paragraph (a);
- (ii)
- any relevant provisions of the Repatriation Acts in force at the time of the review; and
- (iii)
- the provisions of this Part.
(2) The Repatriation Commission shall, as soon as practicable after the commencement of this Part, conduct a review with respect to every pension payable in respect of incapacity caused by pulmonary tuberculosis, being a pension that has been so payable since before the commencement of this Part.
(4) The Repatriation Commission shall not, on the completion of a review with respect to a pension in accordance with sub-section (2), and a determining Authority shall not, at any time after the completion of that review under sub-section (2), determine the rate of the pension to be a rate less than -
- (a)
- where the pension is payable to a member of the Forces - the rate of $74.40 per fortnight; or
- (b)
- where the pension is payable to a dependant of a member of the Forces - the rate at which the pension was payable immediately before the commencement of this Part."
The terms of s.31 of the 1920 Act, referred to in s.40(1), do not have any particular significance for this case. The rate of $74.40 per fortnight specified in sub-secn. (4) is commonly known as the "frozen rate".
On 2 July 1979 the Commission made this determination in respect of the respondent's tuberculosis:
"In these circumstances, the Commission determines the extent of actual incapacity in respect of pulmonary tuberculosis to be negligible with effect from 2 November 1978."
The two paragraphs preceding this determination were as follows:
"The Specialist went on to say that the member is not suffering any incapacity from pulmonary tuberculosis and he considered that the assessment for pension purposes is negligible. In addition he stated that the member's symptoms are the result of recurrent bronchitis. After considering the whole of the evidence, the Commission accepts the opinion expressed by the Chest Specialist as to the extent of incapacity resulting from pulmonary tuberculosis. This opinion is considered to be reasonable and is in accordance with the principles of assessment adopted by the Repatriation Commission."
The Tribunal disagreed with the determination of the Commission set out above and assessed Mr. Moss' incapacity caused by his pulmonary tuberculosis at 30 per cent of the General Rate for total incapacity, which is $76.90 per fortnight. No separate question arises on this appeal concerning the rate assessed by the Tribunal. Mr. Moss has separate pension entitlements for deafness disabilities. Pursuant to s.40(4) of the 1978 Act, the amount of the pension determined by the Commission was $74.40 per fortnight, and this determination was not affected by the Tribunal's decision. What the Tribunal held to be wrong was the nil determination in respect of tuberculosis, and because, as it said, the Commission had proceeded on a wrong basis, it set aside its decision in toto. No argument has been raised before us as to whether this was a correct way of dealing with the matter; the question debated has been the one of substance respecting an entitlement related to tuberculosis.
The Tribunal obviously gave close attention to the factual and legal considerations involved. I set out selected passages from the joint reasons of the members of the Tribunal (Davies J, Mr. F.J. Mahoney and Dr. M. Glick):
"On the evidence, therefore, we are satisfied beyond reasonable doubt that Mr. Moss is not presently suffering from any physical or mental condition related to his tuberculosis which is limiting his activity or affecting his health." . . .
"This brings us to the crux of the case which is that, notwithstanding that there is no present medical condition which limits his capacity, nevertheless the tuberculosis did limit Mr. Moss' capacity to engage in employment and that that limitation is having a current effect upon his income earning ability. The tuberculosis precluded Mr. Moss from continuing in the form of outside employment to which he was most suited and diverted him to indoor employment in the area of stores and accounting to which he was less fitted by reason of his relatively low level of education and his lack of academic training." . . .
"The evidence concerning tuberculosis does not disclose any present incapacity other than a limitation upon his ability to earn income. In this last respect, it appears that his pulmonary tuberculosis precluded his continuing in the field of work to which he was most suited. The evidence discloses that the margin between the remuneration which he may have received had he not suffered pulmonary tuberculosis and the remuneration which he now received is almost 25%."
The question we are asked to decide is whether the Tribunal erred in law. In particular, the question concerns the meaning of "incapacity" and whether the Tribunal was right in finding that there was incapacity when the physical condition had abated. In general, and so far as material for the present case, the body of the Act merely refers to the payment of "pensions", their duration and broadly the bases of eligibility for them (see s.24 of the 1920 Act). Section 35 provides that (so far as material) rates of pension are those specified in the Schedules.
The provisions of the Schedules are rather awkwardly set out, and somewhat elliptical in expression. Schedule 1 deals with "General Pensions Rates".
Column 3 of this schedule provides for "total incapacity", and specifies the rate of $76.90 already referred to. Paragraph 3 of the Schedule deals with a member who is "temporarily totally incapacitated to such an extent as to be precluded from earning other than a negligible percentage of a living wage while he is so incapacitated", and, in effect, provides for a higher rate at the discretion of the Commission. The only other paragraph (para. 6) of this Schedule relates to a case "where the incapacity of a member of the Forces is such that he is unable to earn a living wage by reason that he is unable to engage in a remunerative occupation except on a part-time basis or intermittently" and provides that the rate is to be $140.30. Schedule 2 provides for "Special Pensions" of $203.80 per fortnight. These are granted to members who have been blinded as the result of war service, and to members "who are totally and permanently incapacitated (i.e. incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage)."
Schedule 3 deals in Table A with pensions payable in the case of death of a member of the Forces, in Table B with cases of total incapacity, and in Table C with cases of "partial or specific incapacity" of members of the Forces. Table B is inter-related with Schedules 1 and 2. Table C provides for "Such rate, being less than the rate of the maximum rate, as the case may be, prescribed by Table B of this Schedule, as is assessed, having regard to the nature and probable duration of the incapacity, or in accordance with Schedules 4 and 5 in the cases to which those Schedules apply".
Schedule 4 deals with rates of pension payable in respect of specified "disabilities", the rates being related to total incapacity entitlements under Schedule 3. Schedule 5 also deals with specified disabilities but provides for stated amounts to be paid per fortnight in addition to the pension payable under Schedule 4. Adjustments with entitlements under other schedules are provided for. Pensions, in general, are indexed, or at least indexed upwards, by reference to the All Groups Consumer Price Index (s.35AAA).
It is to Table C of Schedule 3 that the present case directs attention. What it requires is an assessment, and an assessment of a rate, and the rate is applied to a fixed sum. No reference is made to economic loss, and no provision is made there, or elsewhere, for machinery to determine economic loss, either initially or from time to time. The fact is that the Acts in question provide for pensions. They are not analogous to workers' compensation, or employees' compensation legislation, where the central emphasis is on employment-related loss of earnings, temporary or permanent.
The fact that provision is made for lump sum payments and limits are placed on amounts of compensation does not affect the general nature of that type of legislation. The central question there is the affect of injuries or diseases on economic capacity. In the Repatriation Acts, pension payments are, so far as relevant, related to war-caused incapacities or disabilities. The latter lead directly to prescribed entitlements. The fact that "incapacity" relates primarily and principally to physical or mental incapacity is apparent from a number of provisions of the 1920 Act. Section 24 refers to incapacity resulting from an occurrence, but provides that to be pensionable it should not arise from "intentionally self-inflicted injuries". Section 27 refers to incapacity resulting from an occurrence during war service, or contributed to, or aggravated by, conditions of war service. Section 48(1)(b) requires a medical practitioner reporting on a claim to set out his opinion on, among other matters, "extent of the incapacity". There is no need to pursue this point; it has already been emphasised in decisions of this Court (see, for example, Repatriation Commission v Bowman, Full Court, 25 November 1981).
This is not to say that in some cases, at least, such as those of partial incapacity, an assessment must be confined to a consideration of the nature or extent of physical or mental injuries. On the contrary, the very notion of incapacity involves consideration of capacity for something; some external frame of reference is necessary. Although, strictly speaking, the question does not arise in this case, my present view is that incapacity should to some extent, even if only in a general way, take account of what the physical or mental disability or disabilities mean to the capacity of the particular individual to earn and to enjoy life. Such an approach may or may not operate in his favour. I understand from a document in the appeal book that the Commission has long followed a practice along these lines. What is of importance for present purposes is that the Act requires that a relevant physical or mental condition must exist as the basis for an assessment. This means a condition existing at the time of assessment.
The amounts of the prescribed pensions, being fixed, do not accommodate to economic loss in fact suffered. In the present case the Tribunal assessed loss of earnings at 25 per cent, and then translated this into 30 per cent of the General Rate, as being roughly the equivalent. A similar approach obviously could not be followed in many cases. If economic loss were to be regarded as a matter of primary or direct concern, it would seem to follow that pensions would not be payable at all, or would be payable only at a very low rate, if no economic loss could be established. What is done in the Act is to marshall types of incapacity and disability and degrees of effect on earning ability into particular schedules, and parts thereof, and to provide, somewhat arbitrarily, for the pensions payable. So, while paragraphs 3 and 6 of Schedule 1, and Schedule 2, deal with earning ability, they do so by way of providing classification and indicating entitlement. To take one example, paragraph 6 of Schedule 1 is instructive; it points to "the incapacity" and the consequence. The consequence postulated being inability to earn a living, the result is nevertheless a fixed rate of pension. In a sense, the paragraph rovides one meaning of "total incapacity". Schedule 2, in its first paragraph, provides a definition of "totally and permanently incapacitated".
Table C of Schedule 3 provides for a pension to be payable, in cases of partial incapacity, at such rate as is assessed having regard to the nature and probable duration of the incapacity. In both places "incapacity" requires the existence of a physical or mental incapacity, the "nature" of which is determinable. If there is no incapacity there is no provision for payment of a pension. Economic consequences flowing from a physical or mental condition from which there has been complete recovery, or where complete restoration has been effected, are not provided for. In the present case the Tribunal did not find that the economic consequences were an immediate result of the condition, but rather that they were the current result of the tuberculosis having interrupted the pursuit of a livelihood which would now be more profitable than that which he did take up. \ The fact that the consequences are postponed would not disentitle Mr. Moss from a pension, if he was otherwise entitled to one. On the contrary, if he still suffered from tuberculosis the consequences could lead to an increased pension. In fact, because of the special provisions made concerning tuberculosis, the pension presently payable more than compensates for the loss suffered, even when the compensation entitlements for deafness are taken into account.
I am therefore of the view that the appeal should be allowed, the decision of the Tribunal set aside, and the determination of the Repatriation Commission restored. Senior Counsel for the applicant said that in the event of success his client would not seek an order for costs. This is I think a proper attitude in the circumstances (see the terms of s.107VZZB(1)). It is open to the respondent to apply for a certificate under s.6 of the Federal Proceedings (Costs) Act, 1981.