Dawes, Re [1990] QSC 256

/--· 10 Q 30 40 50 60 REVISED COP!,ES ISSUED I Court P.epc'r~insi Bureau I _o_a_te,__/ !._J'C~ °(p J IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BEFORE MR. JUSTICE AMBROSE BRISBANE, 8 AUGUST 1990 Appeal No. 75 of 1988 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE MATTER OF THE STATE SERVICE SUPERANNUATION ACT 1972 - 1985 -and- IN THE MATTER OF AN APPLICATION BY ANNA DAWES JUDGMENT HIS HONOUR: In this matter I confirm the decision of the Board, notified to the appellant by its letter of 27 December 1985 and reaffirmed in its letter to the appellant dated 5 March 1986, and I dismiss the appellant's appeal instituted on 4 April 1986. I publish my reasons. I order that the appellant pay to the respondent, the State Service Superannuation Board, its costs of and incidental to the appeal, to be taxed, and the reasons for making that order are also included in the reasons which I have published. -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 15 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 75 of 1986 Before Mr Justice Ambrose IN THE MATTER of the State Service Superannuation Act 1972-1985 - and - IN THE MATTER of an application by Anna Dawes REASONS FOR JUDGMENT - AMBROSE J. Delivered the 8th day of August, 1990 Counsel: Solicitors: Hearing dates: Mr. McMillan for Appellant Mr. McGill for Respondent Peter Channell & Associates for Appellant K.M. O'Shea, Crown Solicitor for Respondent 2nd and 3rd August, 1990 -- 2 of 15 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 75 of 1986 IN THE MATTER of the State Service Superannuation Act 1972-1985 - and - IN THE MATTER of an application by Anna Dawes REASONS FOR JUDGMENT - AMBROSE J. Delivered the 8th day of August, 1990 This is an application by Anna Dawes for an order setting aside the decision of the State Service Superannuation Board notified on 27th December, 1985 and reaffirmed on 5th March, 1986 whereunder the appellant was reclassified from a contributor for category A benefits under the State Service Superannuation Fund to a contributor for category B benefits under that fund. It is unnecessary for the purpose of this judgment to examine the difference between the entitlement of a contributor for category A benefits and the entitlement of a contributor for category B benefits. Suffice it to say that a contributor for category B benefits has a significantly less generous and therefore less valuable entitlement to benefits from the fund in the event of that contributor suffering a disability in the course of employment. On 12th June, 1984 the appellant who was then a married woman of about 33 years of age commenced employment with the Police Department at a police station at Broadbeach on the Gold Coast as an Administrative Assistant Grade I (temporary). -- 3 of 15 -- 2 Prior to the commencement of this employment the appellant had worked in various parts of Australia and New Guinea performing, inter alia, shorthand and typing work. It appears from the evidence that between the date of her commencing employment in June 1984 and the end of that year the appellant commenced to feel pain and weakness in her left arm. She also suffered from some cervical pain. It is not entirely clear precisely when she first commenced to feel this pain but it seems clear that whenever the onset it was certainly causing her problems in December 1984. She gave evidence that she first experienced pain in the hand or arm in the first or second week in December and that it was a "niggly pain" which got worse towards the end of December and early January 1985. The pain apparently caused the appellant such discomfort that she went to see her general practitioner Dr. Kerr on 5th January, 1985. She gave that doctor "a history of increasing weakness and pain in her left arm." The doctor was uncertain as to the diagnosis of the symptoms which she related and had an x- ray taken of her neck and prescribed anti-inflammatory drugs and analgesics. He made an urgent appointment for her to consult Dr. Maxwell a neurologist who examined her on 8th January, 1985. The appellant told Dr. Maxwell that she had had pains in her left arm over the preceding two months - that is I presume during most of November and December 1984 - and that initially the pains started in both hands but were more persistent in the left. She described a feeling of weakness in the left arm and described a sensation of pain in the upper arm as if she had been punched. -- 4 of 15 -- 3 She told him that the symptoms of which she complained were made worse by such activities as lifting and typing and hanging out the washing. She said the symptoms were improved to some extent by the drug treatment prescribed for her apparently by Dr. Kerr. She told Dr. Maxwell that in fact at the time of his examination she was on sick leave from work because of those symptoms. In December 1984-January 1985 Doreen Amelia West was employed at the Broadbeach police station as a Sergeant of Police whose function it was to deal with the problems of administration and clerical work in that police station. It was she who had interviewed the appellant together with other persons in June 1984 when it was decided to appoint an Administrative Assistant to deal with clerical and stenographic work generated at the police station. Sergeant West worked with the appellant on a day to day basis in 1984 and 1985 and she observed that the appellant was an efficient worker who produced work of a high standard. Sergeant West recalls that prior to Christmas 1984 the appellant told her that she was experiencing pain in her left arm and shoulder and in both wrists. Thereafter the appellant and Sergeant West discussed possible treatments that might relieve the appellant of those symptoms. According to Sergeant West, in the course of one or more of those discussions, prior to the end of February 1985 the appellant expressed the view that her pain in the wrists, arms and neck were related to her use of a manual typewriter provided at the police station at Broadbeach. She discussed apparently the prospects of obtaining the use of an electric typewriter. The appellant informed Sergeant West that her G.P. was unsure as to precisely what was wrong with her, and -- 5 of 15 -- 4 in the early stages "thought that it might have even been a viral complaint". She informed Sergeant West that she felt that such a diagnosis was incorrect. It seems clear that subsequent to the treatment she received from doctors she consulted in January 1985 the appellant resumed work still complaining to Sergeant West of pain in the neck, wrists and arms. It is the appellant's recollection that it was about two weeks before she consulted Dr. -Maxwell on 8th January, 1985 that the pain in her left arm became "more serious" than it had been in early December. The appellant said that she ceased taking the drugs that had been prescribed for her by Dr. Kerr towards the end of January 1985. After she stopped taking the tablets she was still left with pain. She suffered some degree of pain every day although in the earlier stages it was not as bad on the weekends as it was during the working week. The appellant summed up the problems with her left arm by saying that since December 1984 she had suffered continual pain in he left arm to varying degrees. Indeed she said that on 25th February, 1985 she was still suffering from some pain in that arm. It was on 25th February, 1985 that the appellant attended upon Dr. Kelly, the Government Medical Officer at Coolangatta for a medical examination to be considered by the authorities upon her application for admission to the public service and also for admission to benefits from the State Service Superannuation Fund. When she attended for her medical ~xamination by Dr. Kelli the appellant took with her a questionnaire which she had -- 6 of 15 -- 5 answered at home and she executed it in the presence of Dr. Kelly. She underwent a .physical examination and Dr. Kelly filled in details on a form prescribed for that purpose. The questionnaire required the appellant to provide details of her physical condition, ailments etc. of which she was aware and it is unnecessary to refer to all of them; I will refer only to a few. She was asked whether she had any "physical defects" and she said that she did not have any. She was asked:- " 2. Have you suffered from any of the following? (Circle the item)" and among the items specified was "continual pain and/or swelling in joints". She also answered no to this question. She was asked:- "3. State other illnesses from which you have suffered during your lifetime." to which she answered "common cold". She then signed a declaration at the foot of the questionnaire containing inter alia the following terms:- "I declare all the above answers to be to the best of my knowledge and belief true and correct and will fully reveal to the Government Medial Officer or examining doctor all circumstances known to me concerning my health and fitness and am fully aware that by the wilful suppression of any information I shall be liable to have my appointment cancelled." After the completion of the examination of the appellant and after she had signed the declaration as to the state of her health etc. Dr. Kelly expressed the view that the applicant should be classified "under category good health" and be accepted for full benefits of superannuation. -- 7 of 15 -- 6 It was on 15th March, 1985 that the appellant was appointed as an Administrative Assistant on probation for 12 months as from 1st March, 1985. On 25th March, 1985 the manger of the State Superannuation Fund notified the appellant that as a result of her medical examination she had been classified "as a contributor for category A benefits" under the fund. Subsequently for reasons which do not emerge and which do not seem to matter to the issue debated before me, the appointment of 15th March, 1985 was cancelled on 16th May, 1985 when the appellant was reappointed on probation for 12 months as .from 3rd October, 1984. In any event the appellant's arm, wrists and neck gave so much trouble subsequent to 15th March, 1985 that she ceased work on 15th April, 1985 when she went on to sick leave. Apparently her entitlement to remuneration while on sick leave ceased prior to her reappointment on probation on 16th May, 1985 - nearly a month after she had ceased work on sick pay. On 16th October, 1985 the appellant applied to the Queensland State Service Superannuation Fund for an incapacity benefit on the basis that she was a category "A" contributor. In her application form she specified that she had been absent from duty by reason of her incapacity since 16th April, 1985 and that the cause of that absence was soft tissue injury (wrist pain) from which she had suffered continuously since December 1984. To support her application she supplied a certificate from Dr. Robinson which she obtained in November 1985. In fact Dr. Robinson, an orthopaedic surgeon, had examined the appellant on 15th April, -- 8 of 15 -- 7 1985 on referral from her general practitioner, Dr. Cargill. On that occasion the appellant told him that she had pain in her left arm which extended from her shoulder down to the hand and forearm and that she had first noticed this at work in December 1984. She also told the doctor that this pain extended from the elbow region into the wrist and was aggravated when she typed. In November 1985 Dr. Robinson informed the State Service Superannuation Fund that in the light of the appellant's condition it would be "difficult to return to repetitive hand work". When he examined the appellant in January 1985 Dr. Maxwell took notes of the history she gave him. She told him that she had suffered pains in her left arm for two months and that she had pain radiating from the wrists up to the elbow and upper arm as if she had been punched. She told him that lifting made the pain worse and that turning off a tap increased the pain. She told him that she was typing in the Police Department and that the typing caused an increase in the symptoms of pain. There was increased pain also when she was hanging out the washing. She told him she used to get pains also in the right hand while typing. She said that her left hand used to wake her at night. She told him that she had suffered pain in both hands for about two months, it being greater in the left hand than the right hand. She also told him that her left arm was weak. Dr. Maxwell advised her to continue with the prescribed treatment for pain symptoms - suggesting probably that she take tablets and have massage, physiotherapy and heat from a ray lamp. Dr. Robinson examined the plaintiff on 15th April, 1985 when she complained -- 9 of 15 -- 8 to him of pain in the left arm from which she had suffered since December 1984. Upon receipt of the appellant's application for incapacity benefits as a category A contributor supported by the reports from Dr. Robinson the Board concluded that the condition which caused her absence on sick leave from 16th April, 1985 was related to a condition which existed prior to the date of her medical examination for entry as a contributor to the superannuation fund and that she had not disclosed details of that condition to Dr. Kelly. On 28th November, 1985 the manger of the Superannuation Board informed the appellant that uriless she could submit evidence to contradict that which she had already submitted to support her application for incapacity benefits it was proposed·to reclassify her as a contributor for category B benefits only. Thereafter correspondence passed between the Board and the appellant and eventually on 5th March, 1985 the Board notified her formally that it reaffirmed its previous decision that she be reclassified as a contributor for category B benefits only. In acting as it did the Board had regard toss. 64 and 64B of the State Service Superannuation Act. Under s. 64(1) it is provided:- 111. Every person who on or after the commencement of this Act becomes an officer --- shall before being accepted as a contributor for category A benefits be medically examined by a medical practitioner. 2. A person ref erred contribute to the category A benefits after considering practitioner that to in subs . ( 1 ) shall notfund as a contributor for if the Board is not satisfiedthe report of the medical the health and physical -- 10 of 15 -- 9 condition of that person are such as to justify his being accepted as such a contributor." Under s. 4(8) of the Act a person appointed on probation to a permanent position in the Public Service is "an officer" for the purposes of s. 64. It seems reasonably clear that the Board relied upon the report of Dr. Kelly the G.M.O. at Coolangatta in accepting the appellant as a contributor for category A benefits. Under s. 64B it is provided inter alia:- 11(1) Where a person has been accepted as a contributor for category A benefits and it subsequently appears to the Board that he has suppressed or failed to fully disclose information concerning his health or physical condition the Board may determine - (a) where the person is still a contributor that he cease to be a contributor for category A benefits and that he be a contributor for category B benefits and be deemed to have been a contributor for category B benefits on and from the date of his acceptance as a contributor --- 11 This appeal is brought pursuant to s. 58 of the State Service Superannuation Act. Under s. 58(6) it is provided:- "An appeal under this section shall be by way of rehearing and the judge hearing the same may confirm the decision of the Board or uphold the appeal and make such order or orders with respect to the subject matter of the appeal as he deems necessary or expedient to give effect to his decision upon appeal." The point in issue is a short one. It is whether upon the facts I have outlined I am persuaded on the balance of probabilities that when she attended upon Dr. Kelly on 25th February, 1985 for her medical examination the appellant either suppressed or failed to fully disclose information concerning he:'=' health or physical condition. -- 11 of 15 -- 10 Upon the material I am satisfied that when she attended upon Dr. Kelly on 25th February, 1985 the appellant knew that in November-December 1984 she had developed pain in her neck, left arm and both wrists which was so bad that she attended her general practitioner who had had her neck x-rayed and referred her to a neurologist. She was aware that the pain was if not caused at least aggravated by her typing work on the manual typewriter as well as by doing such things as turning off the tap and hanging up the washing. She knew that she had received drug treatment for the symptoms of pain for a significant time during January 1985 and indeed that the pain had become so disabling that she was unable to work as a consequence of it and that she had been forced to take two weeks sick leave in respect of that pain in January 1985. She was aware that the pain as well as being disabling had been constant and had continuously affected her and her physical capacity examination of 25th February, for some months prior to her 1985. Indeed she agreed in evidence that she was suffering from that pain at the very time of her examination by Dr. Kelly. There is no evidence that Dr. Kelly specifically asked the appellant whether she was then suffering from pain or whether she had suffered from pain in her arms, wrists, hands and neck or indeed in any other part of her body. She had after all provided him with a declaration that she had not suffered from continual pain or indeed any illnesses other than a common cold. She had filled in the questionnaire stating that she had on one occasion broken her leg and that she had also suffered from a nervous condition. Dr. Kelly questioned her about each of these matters -- 12 of 15 -- 1 1 to which she had admitted and satisfied himself from what she said that they were not sufficient to cause him to recommend that she be accepted for anything less than full benefits from the superannuation fund. The appellant explains her failure to disclose the problems she had with her hands, neck and arms by asserting that based upon what Dr. Kerr had told her she believed they were caused by a virus and would eventually clear up and therefore need not be disclosed. I am unpersuaded that she did have such a belief; even if she did entertain such a belief a condition of the sort she described to the doctors who treated her and of the sort she described in evidence ought clearly to have been disclosed in the course of answering the questionnaire. I am satisfied that had the appellant informed Dr. Kelly of the pains from which she had commenced to suffer in November- December 1984 and for which she had consulted her general practitioner and a specialist, he would certainly have made further enquiries before making his recommendation to the Board. Particularly would this have been so in the light of the fact that one of the activities that caused her pain requiring her to go off on sick leave was her typing - which after all she was to be employed to do permanently should she be accepted as a permanent appointee. What view the Board might have taken had it considered the appellant's medical history relating to pain in the neck, arms and wrists it is unnecessary to say. In all the circumstances I am persuaded on the evidence before me that the appellant did fail to fully disclose information concerning her health and physical condition when she -- 13 of 15 -- 12 attended upon Dr. Kelly for her medical examination on 25th February, 1985. It is unnecessary for me to consider whether she suppressed that information. I confirm the decision of the Board notified to the appellant by its letter of 27th December, 1985 and reaffirmed in its letter to the appellant dated 5th March, 1986. I dismiss the appellant's appeal instituted on 4th April, 1986. On behalf of the appellant it was contended that should the appeal be upheld I should order that the Board pay the appellant's costs of the appeal to be taxed and should the appeal be dismissed I should make no order for costs. It was contended that the questionnaire requiring her to provide details of her health which she signed on 25th February, 1985 was difficult for the appellant to interpret. I am unpersuaded that the form really was difficult to interpret and in any event the reason for the Board's decision to make her a contributor for category B benefits instead of one for category A benefits was clearly stated at the outset and was based upon the information which came to the knowledge of the Board when the appellant applied for incapacity benefits on 16th October, 1985. In all the circumstances I see no reason to depart from the ordinary rule relating to costs. The appellant has brought and argued her appeal unsuccessfully and I see no reason why the Board ought not as a successful party to the appeal have its costs. -- 14 of 15 -- 13 I order therefore that the appellant pay to the respondent the State Service Superannuation Board its costs of and incidental to the appeal to be taxed. -- 15 of 15 --