JUDGMENT No. / $17.8... CATCHWORDS APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL - Compensation - whether applicant's employment contributed to the aggravation or acceleration of his endogenous depression - no need to establish the existence of a special factor in the employment - difference between Commonwealth Employees' Compensation Act 1930, s.10 and Compensation (Commonwealth Government Employees) Act 1971, ss.27 and 29. compensation (Commonwealth Government Employees) Act 1971 ct 88.5, ' . Commonwealth Employees' Compensation Act 1930 (Cth) s.10 Administrative Appeals Tribunal Act (Cth) s.44 CLIFFORD WILLIAM WESTGATE v. AUSTRALIAN TELECOMMUNICATIONS COMMISSION NSW G257 of 1987 Davies J. 23 December 1987 Sydney a baee 4 0AM 1987 ro mange COURT OF f/ \r IN AUSTRALIA ' -/ No CIPAL SS ne paSTAY vd { a7, IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G257 of 1987 ) GENERAL DIVISION ) On appeal from the General Division of the Administrative Appeals Tribunal BETWEEN: CLIFFORD WILLIAM WESTGATE Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent CORAM: Davies J. DATE: 23 December 1987 PLACE: Sydney MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal be set aside. 3. The matter be remitted to the Administrative Appeals Tribunal for rehearing according to law either with or without the hearing of further evidence. 4. The respondent pay the costs of the applicant. 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 ) No. G257 of 1987 ) ) GENERAL DIVISION On appeal from the General Division of the Administrative Appeals Tribunal BETWEEN: CLIFFORD WILLIAM WESTGATE Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent CORAM: Davies J. DATE: 23 December 1987 PLACE: Sydney REASONS FOR JUDGMENT This is an appeal from a decision of the Administrative Appeals Tribunal affirming the determination of a delegate of the Commissioner for Employees' Compensation that the applicant's condition, a depressive illness, was not the result of the contraction, aggravation, acceleration or recurrence of a disease to which his employment with the respondent was a contributing factor and therefore was not the result of personal injury arising out of his employment. The appeal is limited to questions of law only in accordance with s.44 of the Administrative Appeals Tribunal Act 1975 (Cth). 2. The relevant law is set out in the Compensation (Commonwealth Government Employees) Act 1971 (Cth)("the Act"). The Act provides inter alia:- "27. (1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act. 29 (1) Where - {a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and (b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of this section have effect. (2) If - (e) the total or partial incapacity for work of the employee, results from the disease, or from the aggravation, acceleration or recurrence of the disease, or the employee obtained medical treatment in relation to the disease, or the aggravation, acceleration or recurrence of the disease, as the case may be, then, for the purposes of this Act, unless the contrary intention appears - (£) the contraction of the disease, or the aggravation, acceleration or recurrence, as the case may be, shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; w 3. Sub-section 5(1) of the Act defines "disease" to include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development. The applicant was born in England on 16 March 1939. He was 48 years old at the time of the hearing before the Tribunal. He and some members of his family had a history of or a tendency to suffer from depression. When a young man in the British Army, the applicant took an overdose of tablets, was admitted to a psychiatric hospital for six weeks and on his release was discharged from the Army. His father suicided in 1964 at the age of 65 and his younger brother thereafter suffered from depression in respect of which he received psychiatric treatment. In 1970, the applicant and his wife and children migrated to Australia. In July 1970 the applicant joined Telecom's predecessor, the Postmaster-General's Department. At first, the applicant worked at the Wollongong Telephone Exchange. Later, his work involved installing telephone equipment in the Wollongong area. In the late 1970's, the applicant experienced a series of frustrating events at work. The Tribunal summarised these events as follows:- " . (A) 1978 incident when he had to go to inordinate lengths to extract the $20.00 which he was owed [by way of wages, by Telecom]. 4. . The lack over a five year period of the assistance of an additional backup worker, in situations where this was dictated for reasons of safety, efficiency, quality of work, and to meet commitments to consumers. . Changes in the stores system making it difficult promptly to obtain the simple parts needed to complete the work. . His inability to persuade Telecom to relocate him from a sub-depot to which he had been transferred at Unanderra, to an area closer to his new home at Kangaloon." At the time of the 1978 incident, the applicant developed a pain at the back of his skull and was off work for a short time. The applicant experienced a return of this pain in February 1979 and received treatment from his doctor. Between February 1979 and September 1981 he had many days off work as a result of the pain. The applicant went off work in September 1981 and did not return to work thereafter. Initially the applicant's doctor treated the applicant's neck pain as if it were the result of a a physical injury. However, in September 1981, the applicant was referred to Dr R. Redom, a consultant psychiatrist. Dr Redom treated the applicant with anti-depressants. In 1986, another psychiatrist, Dr G.R.W. Davies, took over the applicant's treatment. The applicant made a claim for compensation in respect of "anxiety and depression due to stress" which he stated first became apparent at work in February 1980 when installing telephone equipment. 5. The Tribunal had before it oral evidence given by the applicant and a number of medical reports from several psychiatrists. The psychiatrists were in agreement that the applicant suffered from a depressive illness. However, one view was that the depression was of the reactive type, brought about by the applicant's reaction to conditions of his employment. Another view was that the depression was endogenous, that is to say constitutionally based and in the circumstances not related to his employment. The Tribunal cited the following extract from a report of Dr K. Dyball, psychiatrist:- "Sometime in 1980 or 1981, [the applicant] began to develop a severe depressive reaction of the endogenous type. ... Endogenous depression is a chemical disturbance of brain function and there is frequently as in this case, a family history. In fact, the family history in this case is stronger than most cases. Only 20% of cases of endogenous depression are precipitated ... There is no evidence that I can see in this case that anything related to work precipitated his depressive illness. Once someone has developed an endogenous depression, their ability to tolerate stress is grossly reduced, so that, having developed the illness, [the applicant] would not have been able to cope reasonably with work. One cannot make the opposite argument and say that work was the stress, because, in fact, unemployed people develop endogenous depression and cannot cope with unemployment any more than depressed people can cope with employment." The Tribunal expressly held that the applicant's depression was endogenous and that he was prone to and had a history of such illness. There was adequate evidence before the Tribunal to justify that finding and the finding is not challenged in this 6. appeal. However, there remained the question whether the applicant's employment contributed to an aggravation or acceleration of his disease. The appeal relates to the Tribunal's approach to that issue. The principles to be applied were enunciated in Federal Broom Co. Pty Limited v. Semlitch (1964) 110 C.L.R. 626. The Court there considered somewhat similar provisions of the Workers' Compensation Act 1926-1960 (NSW). At pp.639-40 Windeyer J. said:- "The next question then is, was there in December 1960 'an aggravation, acceleration, exacerbation or deterioration' of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated. The word 'acceleration' probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax such as death or total invalidism is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli. ... in the present case the words, 'aggravation' or 'exacerbation' are more apt than 'acceleration' to describe the matters on which the case for the applicant depends." Turning to the question of the employment's contribution to the aggravation of a worker's schizophrenia, Windeyer J. said, at pp.641-2:- "I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might 7. have suffered less severely if he had not been employed at all. When the Act speaks of 'the employment' as a contributing factor, it refers not to the fact of being employed, but to what the worker In fact does in qnis em fs ment. The contributin factor must in opinion be either some event or occurrence in he course of the employment or some characteristic of the work performed or the conditions in which it was performed. in this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focused her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. The incident directed, or re-directed, her hypochondriacal attention to her abdominal muscles. But said the appellant, all that it did was to focus her existing delusional tendencies in a particular way: it was a cause of her condition only in the sense that it acted as a precipitant. Thay may be true: nevertheless, Doctor Ellard agreed that 'something obviously happened in December to her to cause a change in her way of life.' The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be & arded as a factor contributing to it. It was sai at In any event she might have broken down sooner ater: that some other incident might have provide ed a focus for her de Tusions But it was this event at work that in fact 50." (the underlining is mine). Likewise, in Ogden Industries Pty Ltd v. Lucas (1967) 116 C.L.R. 537 at 593-4, Windeyer J. said, "The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury." (the underlining is mine.). 8. In Australian Telecommunications Commission v Tzikas (1985) 5 A.A.R. 173, the Court considered the application of the Act in the context of a mental illness and in particular the issue of employment contributing to the aggravation or acceleration of the disease. At p.195, Sweeney and Woodward JJ. said:- ",.. In our opinion, the resentment of a sick mind, directed towards former conditions of employment, if it aggravates or accelerates the disease, and thus contributes to incapacity, is capable of leading to a finding under s 29(1) of the Act that the employment is still contributing to the aggravation or acceleration. However we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier. For those reasons the matter should, in our view, go back to the Tribunal to determine whether the continuing resentment of the respondent about the first aggravation and acceleration of her disease is in fact causally related to her former employment, and, if so, whether it is playing such a part in her present state of health that it can properly and fairly be said to be contributing to a current aggravation or acceleration of her disease and not merely providing a focus for that disease." At p. 186, Smithers J. said:- "If by his finding that the four specified sequelae played a part in the respondent's mental illness the Tribunal meant no more than that in the course of the respondent's natural illness the mind noted the situations described in the sequelae and, according to its naturally impaired mental process, developed a desire that the situation in items two and three should continue indefinitely or a desire to punish Telecom for the situations described in items one and four, then it could not be said that any of the sequelae were factors which contributed to cause an aggravation of the natural illness. They constituted a reason for action by the impaired mind but did not cause it. If the Tribunal meant that the sequelae aggravated the respondent's neurosis and that her mental condition was by reason of the sequelae made worse than it otherwise would have been, that conclusion 9. must have been reached by the adoption of some such notion as that the specified sequelae caused the respondent's mind to develop a desire to maintain her illness so that the benefits described in items two and three of the sequelae would be perpetuated and the dissatisfaction described in items one and four of the sequelae would be vindicated and to implement these desires by some conscious or subconscious mental process whereby the existing neurosis was aggravated." A like problem was examined in O'Neill v. Commonwealth Banking Corporation (Qld G199 of 1986, delivered 9 July 1987). In that case, Pincus J. went on to make plain a further point which is also relevant in the present appeal, namely, that it is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation, acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself. His Honour said:- "It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence of such stress would make it more difficult to show a causal connection between a mental condition and the employment." As Windeyer J. pointed out in Federal Broom Co. Pty Limited v. Semlitch at p.643, "all the statute requires is 'a contributing factor'". In the passage that I have set out above, Windeyer J. pointed out that it is necessary to look "to what the worker in fact does in his employment". It does not matter that the worker's response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or an event or circumstances in the 10. employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence. Windeyer J. used the words "precipitated or stimulated", It is now convenient to examine in the light of these principles what was said in the course of the Tribunal's reasons. The Tribunal held that the disease was endogenous and therefore looked to the question of aggravation or acceleration. The Tribunal referred to the issue whether the work provided "the scene for, rather than a cause or aggravation of, his condition". However, the Tribunal did not make a finding that the work was merely the scene for the applicant's depressive illness. The Tribunal said:- "Had the applicant's assertions that he was too often Teft to work by himself in circumstances where this was unsafe, inefficient, and productive of customer dissatisfaction, been supported in any way by ndependent assessments as to th ropriateness i Pp e inapp B of conditions on e sites where he worked, we might have been able to make a finding that there was, th the words of Mr Justice Windeyer [in Federal Broom Co v Semlich), "some characteristic of the work performed or the conditions in which it was erformed', whic ayed a role in causing his depression. So also, if there were repeated 1 culties in obtaining the wages to which the worker was entitled, he might claim this as a particular anxiety "provoking characteristic of the work performed, rather than an incident of work generally. But as it was, there appears to have been only one dispute over payment in the period prior to the onset of the neck pain. It was over an amount of $20.00, which Telecom had informed the applicant that it owed him. The other matters which were apparentl on the applicant's mind, going to the frustrations at Telecom's reorganisation of its stores, and at having to travel a long way to work, are clearly related toe 'the fact of being employed', rather than to the work erformed or the conditions in which it was performed. And it is impossible to tell whether these weighed more heavily in the applicant's mind than say the problems generated for him by having on 11. many occasions to work alone. Thus, we find that the applicant's depression, whether reactive or endogenous, was triggered by the fact of having to work at all, rather then by some Characteristic or condition of the work. We consider that some factor in his personal life or circumstances might just as readily have triggered the depression from which he now sutters, as did working for Telecom, or working generally. His work held the common expectable frustrations of almost all work in a complex organisation." (the underlining is mine.) It is clear from that last paragraph that the Tribunal considered that facts occurring in the course of the applicant's work with the respondent triggered, that is to say brought about, an aggravation or acceleration of his endogenous depressive state. It is also clear that the Tribunal was looking to ascertain whether there was some special characteristic of the applicant's employment with Telecom or some wrong or inadequate practice of Telecom which was the triggering factor. The Tribunal referred to the lack of independent assessment as to the inappropriateness of the conditions on the sites where the applicant worked. Though evidence as to the inappropriateness of working conditons may assist to show that the work contributed to the development of the applicant's illness, it was not a necessary element of the applicant's case that the conditions were inappropriate to a fit employee who did not suffer from the applicant's endogenous depressive state. The Tribunal referred to the applicant's frustrations at Telecom's reorganisation of its stores, to his frustration at having to travel a long way to 12. work and to "the problems generated for him by having on many occasions to work alone". The Tribunal referred to these as "the common expectable frustrations of almost all work ina complex organisation". The Tribunal found that, although these matters triggered the development in the applicant's depression, they were matters related to "'the fact of being employed', rather than to the work performed or the conditions in which it was performed". The Tribunal appears, therefore, to have concluded that the working conditions contributed in a positive way to the development of the applicant's illness but that those conditions were not of an unusual or special nature, that the conditions of like significance would have been encountered in other forms of engagement. An important sentence in the Tribunal's reasons is "We consider that some factor in his personal life or circumstances might just as readily have triggered the depression from which he now suffers, as did working for Telecom, or working generally." That is not a statement that the employment with Telecom did not materially contribute to the applicant's depressive state. Rather it is a statement that it did so but that there was nothing special about the employment with Telecom and that other forms of employment or even incidents in the applicant's ordinary personal life might just as readily have brought on the applicant's depression. If this was the approach of the Tribunal, and I believe it to be so, the Tribunal was in error. Although the 13. applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease. Perhaps the Tribunal was misled by earlier decisions with respect to the Commonwealth Employees' Compensation Act 1930 (Cth). In that Act, sub-section 10(1) provided:- "10. (1) Where - (a) an employee is suffering from a disease and is thereby incapacitated for work; and the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with this Act as if the disease were a personal injury by accident arising out of or in the course of his employment." (the underlining is mine.) In The Commonwealth v. Bourne (1960) 104 C.L.R. 32, a case which considered the application of that provision to a case of cardiac disease, Fullagar J. said at p.40:- "So far as s.10 is concerned, it seems to me impossible to maintain that the death of Mr. Bourne was 'due to the nature of the employment in which he was engaged'. it was not shown, nor, I should imagine, could it have been shown, that a characteristic or distinctive feature of employment 15. negligently to fail to detect and treat autogenous diseases from which their patients might be suffering. But s 29 directs attention to the actual employment of an employee by the Commonwealth, not to the nature of that employment. And so it is argued, and it may be assumed for present purposes, that the failure of the doctor in Vung Tau to detect and eradicate the cancer should be regarded as contributing to its progress." The Tribunal referred to The Commonwealth v. Rutledge (1964) 111 C.L.R., a case concerned with s.10 of the 1930 Act, in these terms:- "The applicant's case seems superficially similar to that considered by the High Court in The Commonwealth v. Rutledge (1964) 111 CLR 1. The Court found in that case that the aggravation of the worker's pre-existing disease (latent paranoia) was due to the nature of the employment in which she was engaged at the relevant time (investigation of suspected dishonest practices on the part of other employees in her section). In Rutledge, the work involved had a articular feature, name! , covert investigation of Petlow employees, which would stand out in the mind of a person, tracing back from the emergence of particular symptomatology, as a possible explanation for it. However, we distinguish this case; there was no such condition." (the anderlining is mine) The Tribunal used the phrase "due to the nature of the employment". The Tribunal did not acknowledge that, under the 1971 Act, it is no longer necessary for an employee to show that the aggravation or acceleration of the disease was due to the nature of the employment. The Tribunal adopted language consistent only with the application of the test enunciated in the authorities on s.10 of the 1930 Act, such as The Commonwealth v. Rutledge, cited above. There was thus an error of law in the Tribunal's approach. 16. Mr D.M. Yates, of counsel, who appeared on behalf of the respondent, submitted the Tribunal's statement that "some factor in his personal life or circumstances might just as readily have triggered the depression" was an expression by the Tribunal of a lack of satisfaction that it was the employment and not personal factors which brought on the applicant's depression. However, I do not read the sentence in this way. I think that the Tribunal was merely pointing out that there was nothing unusual about the nature or conditions of the employment. For these reasons, therefore, I am of the opinion that the appeal should be allowed. The decision under review was in error and should be set aside. The matter will be remitted to the Administrative Appeals Tribunal for rehearing according to law. It is desirable that I should mention that it is necessary for an applicant to prove not merely that his disease, its aggravation or acceleration has been contributed to by his employment but also that his total or partial incapacity for work results from that disease, aggravation or acceleration. In this respect, it will be necessary for the Tribunal, in its reconsideration, if it finds that the applicant suffers from an endogenous disease and not merely from a reactive depression, to go on to consider whether there was an aggravation or acceleration thereof to which the employment contributed, whether incapacity for work resulted from that aggravation or acceleration and whether such 17. incapacity was of a temporary or continuing nature. The Tribunal may find helpful the remarks of Windeyer J. in McLaughlin & Co Pty Ltd v. Brinnand [1965] WCR 112 at p.118:- "The effect of the Workers Compensation Act 1926 (NSW) since it was amended In 1960 FS in my opinion as follows. If, without any aggravation or acceleration contributed to by his employment, a worker would have become incapacitated to the extent he was and when he was by a disease from which he was suffering, then, whether or not there was in fact any aggravation, acceleration or exacerbation of the disease, his incapacity cannot be said to result from aggravation, acceleration or exacerbation. If, on the other hand, a worker's disease is so aggravated by his employment that it causes an incapacity when without such aggravation he would have suffered no incapacity from the disease, then he is entitled to compensation. And if the effect of the aggravation is to cause a greater degree of incapacity than the disease unaggravated would have done - as, for example, if what would otherwise have been a partial or intermittent incapacity becomes a total or permanent incapacity - he is entitled to compensation for the incapacity actually occurring, for it is the result of the aggravation of his pre-existing condition; and it is immaterial that unaggravated he might still have been to some lesser degree incapacitated. If, however, the employment by aggravating his disease or accelerating its progress merely causes an incapacity of the same degree that the disease would in time have caused but causes it earlier, then it seems to me that the resulting compensable incapacity is only that which can be said to be attributable to the aggravation or acceleration: that is to say it is the incapacity from its actual occurrence to the time when, ex hypothesi, the disease, if not accelerated or aggravated, would have produced it." Also pertinent may be the remarks of Sweeney and Woodward JJ. in Australian Telecommunication Commission v. Tzikas, cited above, at p.195:- "Por the respondent to succeed, she must show that she is suffering from a mental illness, aggravated or accelerated by her employment with Telecom, which aggravation or acceleration has contributed to her present incapacity. Before the Tribunal, counsel for Telecom apparently conceded that, even if the previous aggravation and acceleration had ceased, employment with Telecom could properly be said to be 18. contributing to present incapacity ''if the consequences of the aggravation and acceleration were now contributing to causing her mental illness'. We think that was a proper concession provided that the word 'consequences' is limited to legal consequences, with the chain of causation intact, and does not extend to other, loosely connected, later events." These and like matters may be issues to which the Administrative Appeals Tribunal in its reconsideration of the applicant's claim may have to direct its attention. The order of the Court will be that the appeal be allowed, the decision under appeal be set aside and the matter remitted to the Administrative Appeals Tribunal to be heard and decided again either with or without the hearing of further evidence. The respondent should pay the costs of the appeal. I certify that this and the 17 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies. Associate: J- Geckos Date: 23 December 1987 Counsel for the applicant: Mr A. Leslie Q.C. with Mr G.M. Watts Solicitors for the applicant: S. Masselos & Co. Counsel for the respondent: Mr D.M. Yates Solicitors for the respondent: Australian Government Solicitor Date of hearing: 19 November 1987