Case: Re Schofield and Comcare (1995) 38 ALD 124
Outcome: cited
The applicant acknowledges that there is no false and wilful misrepresentation to the effect that he did not suffer, and had not previously suffered from, a degenerative condition in his left knee. That is the disease specifically which the Tribunal found had been aggravated by the respondent's employment with the applicant. The respondent's evidence was that he had previously had trouble with his left knee in 2002 when he had been learning to drive a truck with a heavy clutch, but that the problem had resolved following physiotherapy. It was not contended by the applicant that that circumstance was sufficient to have obliged the respondent by reason of s 10(7) to have disclosed specifically the previously degenerative condition of his left knee because it is now shown that he was aware of it. It is not a circumstance where the respondent failed to disclose a symptom of a disease in the left knee in circumstances where it ought to have been disclosed, as distinct from the suffering of a particular and temporary injury: cf Re Schofield and Comcare (1995) 38 ALD 124. 70 The medical evidence indicated that the respondent had an underlying degenerative condition of both his knees, but does not firmly indicate that those degenerative conditions were related, or that the incapacity caused by aggravation of the degenerative condition in the left knee was related to the degenerative condition in the right knee. Reference need only be made to the report of Dr Bauze of 12 September 2005 and of the respondent's general practitioner, Dr Chambers, in his report of 19 October 2005 discussed in the Tribunal's reasons. 71 The applicant submitted that "the relationship between degenerative conditions in knees is hardly controversial". That may or may not be correct as a matter of general medical science, but it does not address the particular findings of fact, or the particular evidence in this case. As its contentions indicate, there was some medical evidence considering the relationship between the degenerative conditions of the respondent's right knee and his left knee. The issue was not fully explored because, in the particular circumstances, it was not a matter upon which the Tribunal was required to make, or made, a finding favourable to the contention of the applicant. It merely found that the respondent had a degenerative condition of his left knee which had been aggravated by his employment with the applicant, leading to incapacity for work. That state of the evidence does not enable me to make any finding on the issue, as potentially authorised by s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth). 72 In those circumstances, in my judgment, the applicant has not shown in any event that the respondent made a wilful and false representation that he did not suffer, or had not previously suffered, from a degenerative condition in his left knee or had not suffered and did not suffer from the aggravation of that condition when he applied for his CMF or subsequently. In this particular case, the Tribunal did not make the finding upon which the applicant's contention is premised and in fact did not find that the degenerative conditions in the applicant's right and left knees were a single ailment, and should therefore be treated as a single disease. It made a different finding. The finding was open to it. 73 Consequently, the condition upon which s 10(7) would operate as a matter of fact to disentitle the applicant from compensation under the Seafarers Act has not been shown by the applicant to have been made out, and indeed its premise is inconsistent with the finding which the Tribunal in fact made.