CATCHWORODS ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal ~ Commonwealth Employees Compensation - determination as to whether employment contributed to aggravation or acceleration of disease - statutory test to be applied - Tribunal applying different test - error of law. WORKERS COMPENSATION - Commonwealth Employees Compensation Act determination as to whether employment contributed to aggravation or acceleration of disease - appellant suffering from cardiac neurosis - test to be applied. Compensation (Commonwealth Government Employees) Act 1971 Terrence Michael O'Neill v. Commonwealth Banking Corporation Qld G199 of 1986 PINCUS J. BRISBANE 9 JULY 1987 Ve, FADER | Guui o> * AULA Ce Beetottn / 'Bate + i IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G199 of 1986 GENERAL DIVISION ) ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISON OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: TERRENCE MICHAEL O'NEILL Applicant AND: COMMONWEALTH BANKING CORPORATION Respondent PINCUS J. 9 JULY 1987 REASONS FOR JUDGMENT The idea of compensating employees for neuroses and the like said to be work-related may be thought by some people not to be a sound one; not only is it difficult to determine with any confidence why people have become neurotic or depressed, but there is the thought that the very fact of compensation's being available may make it more likely that such conditions will be complained of. Yet ain this country there are statutes which entitle employees to compensation for these nervous disabilities, and to these courts must of course faithfully give effect. The appellant says in this appeal under s.44 of the Administrative Appeals Tribunal Act 1975 that he is so entitled and that the Tribunal has applied wrong tests in holding him not to be. I have come to the conclusion. for reasons I shall explain, that the appellant s complaint about the tests applied has been made good. The claim was made under the Compensation iVommonwealth Government Employees? Act 1971 and the appellant succeeded in obtaining a favourable determination on 24 April 1985. On appeal to the Administrative Appeals Tribunal, that determination was set aside. The immediately relevant statutory provision 1s s.ay(1l) of the Act:- "Where - 'as an employee contracts a disease or suffers an aggravation, acceleration or recurrence or a disease; and 'br any employment or the employee by the Commonwealth was a contributing factor to che contraction of the aisease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease Was contracted or the aqaravation, acceleration or recurrence was surrered in the course or that employment, the succeeding provisions or this section have errect." Subsequent provisions give a certain etrect to a rinding that incapacity tor work has resulted from an aggravation, acceleration or recurrence of a disease, but 1¢t 15 unnecessary to explain what that effect 1s. The only point with which the Tribunal was concerned was whether the employment of the appellant by the Commonwealth was a contributing factor to the contraction of the disease of which he complained, or to ats aggravation acceleration or recurrence. The Tribunal found that the appellant suffered at the relevant time from a cardiac neurosis unrelated to his work, as an officer ot the Commonwealth Bank at Cairns and Atherton in gueensland. Counsel for the appellant contended that that finding was not open on the evidence and that 1f it was, the Tribunal had arrived at ait by an impermissible process of reasoning. The evidence 1s fairly long and detailed, but it 15 unnecessary for the purposes of these reasons to discuss the whole of it. Althouah from time to time suggestions have been made as to the proper meaning ot the statutory language set out above, it 1s doubtful if the process ot analysing its meaning helps much, in the ordinary case. To ask the question whether a particular employment was a contributing tractor to the contraction of a disease cr to 1tsS aaqravation, acceleration or recurrence 15 not ro use Language or a technical character. A similar point was made by Mason J.A. tas he then was) ~! in Migge v. Wormald Bros. Industries Etd. C1372] 2 N.S.W.L.R. 29, ina judgment relied on by the Full Court of this Court un Kirkpatrick v. Commonwealth ot Australia (1985) of A.L.R. 533 at p.537. His Honour said, at p.44, in effect, that questions of causation in the application of workers compensation legislation "are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation". At p.47 he referred to a decision of the New South Wales Court of Appeal as emphasising "that the question of causation 1s essentially one of fact". In Kirkpatrick's case, after referring to these passages, the Full Court said at p.527: "Eschewing metaphysics, the decision of the Tribunal is in this case fundamentally a finding of fact upon a common sense consideration of the factors which led to the applicant's condition ..." The appellant s contention 1s that, although 1t purported to apply Kirkpatrick $ case, the Tribunal here departed from the essentially simple test laid down by the statute. A number of lay witnesses, including the appellant, gave evidence before the Tribunal, as did medical practitioners. Two sorts of conditions were in question: firstly, 1t was said that the appellant had or may have sutfered from a cardiac condition; secondly, 1t was common ground that he sutfered at material times from a psychiatric condition. The determination or the delegate which was successtully attacked before the Tribunal was one under which the appellant succeeded in respect of the second condition. It was determined that he ""Sufrered aagravation cor a disease, namely, anxiety depression, and hist employment had been a Tantributing tactor to that aagravation ..." Consequential determinations were made. The view which the Tribunal took, and which 1s challenged before me, was that the appellant had a cardiac meurosi3 unrelated to his work. In coming to that apinion, the Tribunal expressed its satisfaction that 1t should act on the evidence ot a Dr. White in respect of the appellant s physical condition, and on the evidence of a Dr. Unwin, in respect of his psychiatric condition; opinions conflicting with the evidence of those two doctors tand there were some) were rejected. Since no suggestion was made that the Tribunal was not entitled to accept the evidence of the two doctors I have mentioned, there 1s no occasion, as it seems tome, to analyse the views of other doctors. In essence the appellant's case was that the Tribunal did not deal properly - i.e. lawfully - with the critical evidence, that of the psychiatrist Dr. Unwin. Dr. White first saw the appellant in 1980 when he was referred by a general practictioner, who was given a history of a syncopal episode at work in 1971 and some further trouble which, 1t was suggested, might be related to heart disease, in 1979. Then, in 1980, the appellant suffered more chest pain, associated with dizziness and weakness and continued to have lesser pain of 2 Similar kind. Atter investigating the matter, Dr. White formed the view that, although there was some old heart trouble. it was not contributing to the appellant 3 then lack ot well-being, which was caused by chronic anxiety depression. Dr. White saw the appellant quite a number ot times in 1981 and 1982 with, broadly speaking, Similar results. The doctor was plainly ot opinion that the psychiatric condition from which the appellant suffered was related to his work, but, as has been explained, the Tribunal did not accept any view on psychiatric matters except that of Or. Unwin, to which I now turn. Dr. Unwin wrote a report in May 1982 1n which he said, in effect, that the appellant should receive further treatment betore any decision was made to retire him. He said that: "I notice that his premorbid functioning was extremely good and although retirement from the bank may seem on the surface a good idea, 1t will not alleviate his symptoms which he experiences also in terms of his social life." In fact. as I read the evidence, an alleviation of the symptoms did in fact occur after retirement; that seems not to have been in dispute. Dr. Unwin aave oral evidence, and i1t was on that evidence that the Tribunal principally relied in interpreting his view. The doctor said, or rather agreed in response to a leading question, that the "aggravating factor that caused all this" was the "heart attack" and described the appellant, again in response to a leading question, as having a "typical cardiac neurosis". In cross-examination, he seemed to agree that the appellant had genuine difficulties in handling his work. He explained this by saying that he was ina "phobic situation" which Was going to "ome back in all sorts of situations"; he instanced the death ot 2 near relative from a heart attack, a marriage break-up and death or a child. vyuestioned by the Tribunal, De. Unwin zaid in effect that the case was one in which the appeilant had "latched on to' his work as being the cause of his disease, 1¢ not being "actually a contributing tactor". However, when cross-examined rurther by Mr. Green ot counsel ror the appellant. he gave some answers which need to be quoted in full: "You have told us that the case of their sick mind getting sicker - one of the factors contributing towards that increasing sickness, 1f you like, 15s the work situation - the work pressures?---I am sure that 1s true. Yes. And so the - would you agree that the work pressure that this man says that he underwent between 1974 and 1979, 1980, was a contributing factor in producing his condition?---Yes. I may be seeming to say the two things are the opposite, but I am not. whe * Yes, you seem - - -?---I am saying yes to both. Maybe you could ask me a different question. MR. GREEN: Yes?---May 1f I could explain myselt, and you can ask another question. Yes?---If a person is having this problem with his fears of his longevity, his life, his heart, etcetera, and, in fact, 18 centring these around his work, then it 1s not important whether those pressures are real, or anything. They will in turn create more anxiety and worry, and that. in turn, will make him more fearful. I see. So he would - aif - 1f worrying - for instance, 1f worry about his work, such that 1t 1s exhibiting the sort of symptoms we went through: shaking and buzzing and so forth, and that 1s suggestive of the fact that his work 13 contributing, or adding to, or aggravating his underlying mental health?---You see, 1t 1s a basis or 1t the attitude to work 1s one or fear. then any relationship to the work 15 going to aggravate the esondition. All riqght?---Irt the attitude 1s one ot enjoyment or one or mon-fear, then, in fact, 1t 1s probably going to increase his mental health. yes. 30 1t 153 a - this 15 a case, 15 it, where he has a - an underlying neurosis which has developed and 15 aaqgravated, or ameliorated from time to time on a onumber of factors?---Yes. You see, Dr Richards - and I am not sure whether this 15 allowable, you tell me if it 1s not - Dr Richards called him a vulnerable personality. I disagree with that. I think that he has sensitive areas in a number or situations. and I cannot tell you the intricate deta1lls or why that 1s focussed on work at the moment. I[t - fear 15 usually a combination or the particular work pressures in the particular person. And that 1s difticult." As I understand this rather diffuse discussion, doctor seemed to be saying that the psychiatric condition was one which was caused by work, but by a cardiac phobia, but the symptoms of 1t were substantially aggravated by "pressures" of the appellant's work. the not that the The principal criticism of the Tribunal's reasons made on behalf of the appellant was that 1t decided against the appellant on the basis that the underlying disease from which he was suffering was not related to his work, and did not attend sufficiently to the possibility that the appellant had shown that work was a contributing factor to the aggravation or acceleration ot the disease. The Tribunal's reasons included the statement that the member was "unable to relate the respondent's incapacity to work after the failed attempt to return to work Cairns Csic} in 1981 to any contribution of his employment by the bank to the contraction, aggravation, acceleration or recurrence of his disease". The Tribunal went on to say that 1t was "a case of a sick mind latching on to the work factors and not a case ot work making a sick mind sicker". The "latching on" metaphor, the precise meaning of which 1s not very clear, was described by Mr. Bennett Q.C., senior counsel for the respondent bank, as the key to the case. When originally used in Australian Telecommunications Commission v. Tzikas (unreported, 12 August 1985), the expression referred to a quite different problem. Tzikas' case concerned compensation neurosis and the Full Court's remarks drew a distinction between certain consequences "making a sick mind sicker" and "a sick mind latching on to the factors described so that, 1n one sense, they play a part in the illness, but not in such a way as to add to existing incapacity". If one speaks of a person suffering from some physical or mental condition as having "latched on to" a particular cause, the implication seems to be that the cause ascribed by the victim is not the true cause, although he perhaps thinks 1t 15; but in my opinion the resolution of the difficult questions which arise when those whose duty 1t 1s to do so have to try to determine the causes of neuroses, depressions and the like 1s not assisted, but 15 impeded, if one routinely substitutes for the statutory test figurative language used in determining a problem arising ina different factual context. A perusal of the transcript has convinced me that the Tribunal regarded the appellant s passing or failing the "latching on" test as the essential point; a question was put as follows, by the Tribunal, to Dr. Unwin: "Well, broadly, doctor, we have got - I have got to distinguish between the situation where work 15 actually a contributing factor to the aggravation or this or acceleration ot his disease. and a situation where a sick person latches onto his work as being the cause ot his disease, or an aggravating tactor. Which of those : The Tribunal asked a similar question of Dr. White, beginning with the words, "We have to draw a distincticn between something that makes a sick mind sicker and contributing to the incapacity and on the other hand a sick mind latching on to the tactors ..." With respect, a clearer case of substituting another test for that which the statute lays down can scarcely be imagined; that the language selected was not intended by the judges who used it as a universal solvent of this sort of problem is also clear. The Tribunal expressed its assessment of the evidence at one point by saying that: "fT accept the respondent's evidence of problems with the control balance proof machine at Atherton. I accept that there were staff shortages. Beyond this I cannot accept there was any usual stress at the Atherton bank ... The respondent's other problems at Atherton were generated by the respondent himself and not by the eftect on him of any extra stimulus of the work." It doeés not appear the Tribunal took the view that the appellant merely affected his condition, or that he deliberately tried to induce 1t, assuming 1t were possible to do so. When the Tribunal says that problems were "generated by the respondent himself", that seems to mean, by the condition from which he suffered. It 1s, of course, not the law that mental 'conditions caused by employment are compensable only it there 15 unusual stress or extra stimulus, although no doubrk the absence ot such stress would make it more diftricult to show a causal connection between a mental condition and the employment. Nor is 1t the law that only neurotic conditions arising in circumstances in which an ordinary man of normal personality would become neurotic iit there are such circumstances; are compensable. To return to Kirkpatrick's case tabove) the employee there in question suffered from compensation neurosis. He thought his employer had not treated him fairly in relation to injury suffered at work and 1t was that aspect of the case which made relevant the reference to the observations in Tzikas' case, discussed above. The Court in Kirkpatrick's case described those observations as "concerning a claim for compensation for further 11. aggravation of neurosis by, inter alia, resentment towards the employer ..." (62 A.L.R. at p.537). Kirkpatrick's case 1s (as I read it) authority for propositions of importance, in particular that the development of a compensation neurosis as a result of a Failure to pay compensation in respect of an allegedly disabling physical condition that 1s not 1tself compensable 1s not a ground for payment ot compensation - a view of the tribunal there attacked, but which the Court appeared to approve. Here that principle is not material. There was evidence, including evidence from Dr. Unwin who was accepted, well capable ot supporting a finding in favour of the appellant. There was evidence having a contrary tendency. I have been persuaded by Mr. Cooper Q.C. for the appellant that the Tribunal railed to accord to the appellant that to which he was entitled, viz. application of the statute. I think the Tribunal applied remarks in other cases about very ditrerent facts, remarks which it thoudqht established additional legal obstacles in the appellant s_ path. 1 do not accepk that a conclusion on the tacts adverse to the appellant was impossible, nor did that contention appear to be very seriously pressed, but the appeal must' be allowed and the matter must, regrettably, go back to the Tribunal. I shall ask counsel to address me on the form of the order to be made, and as to costs. i certify that this and the tO preceding pages are a true copy of the reasons for judgment herein of H:s Honour Mr. Justice Pincus Associate Dated 4 July 1437] Counsel for the Appellant: Solicitor for the Appellant: Counsel for the Respondent: Solicitor for the Respondent: Dates ot hearing 12. Mr. R. Cooper Q.C. with Mr. V. Green Messrs Cooper Grace and Ward Mr. D. Bennett Q.C. with Mr. P.R. Arden Mr. Lawrie of Commonwealth Banking Corporation 1, 2 June 1987