JUDGMENT No. 3727.28. CATCHWORDS ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - Commonwealth employee's compensation ~ determination by Administrative Appeals Tribunal that employment not a contributing factor to the contraction or aggravation or acceleration of disease - statutory test to be applied - error of law. WORKERS' COMPENSATION - Commonwealth employees - Cardiac neurosis ~ whether employment a contributing factor to aggravation or acceleration of disease - proper test to be applied. Compensation (Commonwealth Government Employees) Act 1971 ss.27(1), 29(1) Administrative Appeals Tribunal Act 1975 s.44 COMMONWEALTH BANKING CORPORATION V. TERRENCE MICHAEL O'NEILL QLD. NO.G126 OF 1987 FISHER, SPENDER AND EINFELD Ju. BRISBANE I5 JULY 1988. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QLD. G126 of 1987 GENERAL DIVISION BETWEEN: COMMONWEALTH BANKING CORPORATION Appellant AND: TERRENCE MICHAEL O'NEILL Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FISHER, SPENDER & EINFELD JJ. DATE OF ORDER: 15 JuLY 1988 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The appeal be dismissed with costs. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. LS ed) IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. G126 of 1987 GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: COMMONWEALTH BANKING CORPORATION Appellant - and ~ TERRENCE MICHAEL O'NEILL Respondent REASONS FOR JUDGMENT CORAM: Fisher, Spender & Einfeld JJ. SS, daly 1988 FISHER J.: It is very apparent that the difficulties in this matter arise from the use which the Tribunal in its reasons made of what has been called the "latching on" metaphor or test. Such difficulties would not have occurred if the Tribunal had clearly acknowledged that this was not the test required by the legislature but was merely a shorthand and imprecise means of identifying the statutory test. Counsel for the appellant at the outset asked us to uphold the appeal to this Full Court on the ground that the trial 2. judge was in error in exercising jurisdiction to hear an appeal from the Administrative Appeals Tribunal. It was said that the question before him was essentially a question of fact. However if, as the respondent contended, the Tribunal failed to apply the correct statutory test, it erred in law. Whether it so failed was the question for determination by the primary judge. In my opinion he had jurisdiction under s.44 of the Administrative Appeals Tribunal Act 1975. If his decision was that the correct test had been applied by the Tribunal, he would have been bound to dismiss the appeal. The primary judge was of opinion that there appeared in the Tribunal's reasoning a particularly clear case of the substitution of another test for the statutory test. For my part I am not satisfied that there was such a clear case and am of the Opinion that there 1s much to be said for the submission of counsel for the appellant that, properly understood, it 15s apparent that the Tribunal adopted the correct test. However 1f, as counsel contended, the primary judge misunderstood what the Tribunal said or was doing, the Tribunal must accept responsibility for the misunderstanding. It can be put this way, any misunderstanding was, in my opinion, quite understandable. This is a matter upon which minds will differ, and my colleagues are strongly of the view that there was no such misunderstanding. I acknowledge the force of what the trial judge and they say on the matter. Whilst what counsel for the appellant contended is certainly open, it is not the only interpretation which can be placed on the Tribunal's reasoning. 3. It follows that I join in dismissing the appeal costs. I certify the 2 preceding pages to be a true copy of the Reasons for Judgment of his Honour Mr. Justice Fisher. Associate: AMIS, Date: 15 [2/8 with IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) QLD. G126 of 1987 ) ) GENERAL DIVISION BETWEEN: COMMONWEALTH BANKING CORPORATION Appellant TERRENCE MICHAEL O'NEILL Respondent CORAM: FISHER, SPENDER & EINFELD JJ. PLACE: BRISBANE DATE: 15 JuLy 1988. REASONS FOR JUDGMENT SPENDER J. This is an appeal from a single judge of this Court, who allowed an appeal from the Administrative Appeals Tribunal which had set aside a determination in favour of the applicant, Terrence Michael O'Neill, in respect of his claim under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). Section 29(1) of the Act provides:-— "Where — (a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and 2. (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." The succeeding provisions have the effect that, pursuant to s.27 of the Act, compensation is payable in respect of incapacity for work. Mr. O'Neill had been employed by the Commonwealth Banking Corporation ("the Bank"). The delegate of the Commissioner for Employees' Compensation made a determination on 24 April 1985 that Mr. O'Neill "...suffered aggravation of a disease, namely, anxiety depression, and his employment was a contributing factor to that aggravation ...". On 5 December 1986, the Administrative Appeals Tribunal determined that Mr. O'Neill suffered from a mental disease (cardiac neurosis) and that his employment with the bank was not a contributing factor to the contraction or the aggravation or acceleration or recurrence of that disease. The learned primary judge concluded that in reaching its decision the Tribunal had failed to apply the terms of the statute; that in the process of reasoning it adopted, it had applied remarks in other cases about very different facts, remarks which he thought established additional legal obstacles in the appellant's path. He remitted the matter to the Tribunal to be reheard before a member other than the member from whom the appeal was brought. That decision 1s the subject of this appeal by the bank. 3. Mr. O'Neill had worked for the bank for virtually all of his adult life. At the time of the Tribunal's determination, he was 54 years of age. He worked first in Brisbane, then in Townsville, and in 1970 was transferred to Cairns, where he worked as senior assistant in the trading branch. Whilst at Cairns he had what he thought was a heart attack. However, a specialist's investigations at the time indicated that this was not the case, and that the respondent's principal complaints had been vasovagal syncope with functional problems and mild anxiety state. In November 1972, he was transferred to Atherton as an accountant. He claimed that there were work pressures of a significant kind during that period. He claimed that he had a further "heart attack" in Atherton in about 1979. Mr. O'Neill had a period off work and returned to work in July 1980. He then complained of further difficulties at work and told the Manager he couldn't continue. He was referred to Dr. White in Cairns, who hospitalised him. He was then on sick leave for nearly a year. He recommenced work in Cairns in September 1981 on light duties. Mr. O'Ne1ll says he encountered further difficulties with working. He ceased work in 1981 and he has not' worked since. A local medical practitioner, Dr. Chilcott, had diagnosed the incident 1n Atherton in about 1979 asa "heart attack". The Tribunal accepted the evidence of Dr. White as to Mr. O'Neill's physical condition, and concluded, "{on] Dr. White's evidence it is clear that the respondent has no pathological heart condition". 4. The Tribunal heard evidence from Mr. O'Neill and his wife, a number of bank employees, three psychiatrists, two physicians, two cardiologists anda general practitioner. The Tribunal concluded that "...the facts of any psychiatric condition should be found in accordance with the evidence of Dr. Unwin." Dr. Unwin had treated Mr. O'Neill in January 1982, and said of him that "he has a typical cardiac neurosis which is being played out as a phobic disorder which he is not even aware is really a phobia". The learned primary judge said that there was evidence well capable of supporting a finding in favour of Mr. O'Neill, and there was evidence having a contrary tendency. He did not accept that a conclusion on the facts adverse to Mr. O'Ne1ill was impossible. Since the primary question on the appeal 1s whether the learned primary judge was right in concluding that, in finding that the employment by the Commonwelth Banking Corporation of Mr. O'Neill was not a contributing factor to the contraction or aggravation of his cardiac neurosis, the Tribunal had not applied the test for which s.29(1) calls, it 1s necessary to refer to the way in which the Tribunal reached its conclusion. The finding of the Tribunal was:- "On the medical evidence I accept that the respondent has cardiac neurosis which is autogenous in character and unrelated to his work. Because of the neurosis the respondent is of the view that he has a heart problems (sic) and that this is related to his work; he holds that view 5. despite assurance to the contrary from the medical profession. I so find." However, the Tribunal had prefaced this finding by saying:- "The relevant legal tests were articulated in Kirkpatrick v. Commonwealth (1985) 62 A.L.R. 533 where the Full Court of the Federal Court said at pp.536-7:- 'But the applicant's counsel argues. that it was accepted that the applicant genuinely believed his right leg problem was related to the injury to his coccyx. He argues that the neurosis, which arose at some time following the rejection of the claim for compensation in respect of the leg disability, involved the belief that the disability was related to the coccygeal injury. Accordingly it was contended the employment, out of which that injury arose, was itself a contributing factor to the contraction of the mental disease. But the fact is the leg disability had nothing to do with the work injury. And thinking cannot make it so. The fact that the applicant thought his disability arose out of his work, and therefore thought it compensable, may have been potent factors in the development of his neurosis. But these were thoughts un his mind. They did not mean that his employment actually was a contributing factor in the development of his neurosis.'" The Tribunal then referred to the observations of the Full Court at pp.537-8:- "In Australian Telecommunications Commission v. Tzikas (unreported, Full Court, Smithers, Sweeney and Woodward JJ., 12 August 1985) the joint judgment of Sweeney and Woodward JJ. contains some observations concerning a claim for compensation for further aggravation of neurosis by, inter alia, resentment towards the employer alleged to have resulted 'first, from the actual (i.e. Original) aggravation and acceleration of the 6. illness, then, from the loss of her previous income, and finally from the delays which occurred as the result of the procedures which were needed in order for her to obtain compensation'. It was a case in which it was accepted that an aggravation had originally occurred by reason of excessive noise in the workplace, but payments of compensation had been terminated on the basis that the aggravation was spent. The tribunal restored the payments, and upon appeal the Full Court referred the matter back for reconsideration, as Sweeney and Woodward JJ. put it, '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'. They also said: 'There is, of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the 1liness, but not in sucha way as to add to existing incapacity.'"" Having referred to these "tests", the finding of the Tribunal continued:- "As Dr. Unwin put it 'the basis of the attitude to work was one of fear, then any relationship to the work is going to aggravate the condition.' After a year away from the work place the respondent simply felt he could not return to work. I accept Dr. Unwin's appreciation of the psychiatric situation. On all the evidence I am unable to relate the respondent's incapacity to work after the failed attempt to return to work at Cairns in 1981 to any contribution of his employment by the bank to the contraction, aggravation, acceleration or recurrence of his disease; the fact that his problems would recur if he returned to that work is not the test prescribed by paragraph 29(1)(b) of the Act. In my view it was at the relevant time a case of a sick mind latching on to the work factors and not a case of work making a sick mind sicker." 7. The conclusion of the learned primary judge was that the Tribunal, by its adoption of the "latching on" metaphor, had substituted a different test from that which s.29(1) imposes. He said:- ",..in my opinion the resolution of the difficult questions which arise when those whose duty it is to do so have to try to determine the causes of neuroses, depressions and the like is not assisted, but is impeded, if one routinely substitutes for the statutory test figurative language used in determining a problem rising in a 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;..." The appellant submitted the Tribunal did not misdirect itself, but simply drew factual inferences from the evidence: this did not constitute an error of law within the meaning of s.44 of the Administrative Appeals Tribunal Act and, since an appeal lies to the Federal Court only "on questions of law", the appeal was incompetent. It was next submitted that the approach of the Tribunal did not amount to an acceptance that there was a dichotomy between the case of a sick mind latching on to the work factors and the case of work making a sick mind sicker. It was said that the latter was the test of which s.29(1) speaks and the former was offered by the Tribunal simply as an explanation for the non-application of a causal acceleration or aggravation. Alternatively, it was submitted that, if the Tribunal saw the "latching on" test as a dichotomous choice and applied it, the Tribunal's approach was correct. 8. While acknowledging that different minds might reach a different conclusion, I agree with the analysis by the learned primary judge of the reasoning of the Tribunal. I am satisfied that the Tribunal did, in fact, see its task as deciding whether there was a "latching on". I am further satisfied that that involves a misapplication of the statutory criteria of s.29. Dr. White was asked by the Tribunal in the course of giving evidence:- "We have to draw a distinction 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 factors and, so to speak, making them guilty for what it would do to themselves. Do you think it is the first or the second?" He responded:- "IT would have thought it was the first situation." Dr. Unwin was asked:- "Well, broadly, doctor, we have got - I have got to distinguish between the situation where work is actually a contributing factor to the aggravation of this or acceleration of his disease, and a situation where a sick person latches on to his work as being the cause of his disease, or an aggravating factor. Which of those ---?" He responded:- "IT would say it was - 1t 1s my opinion, but I would say it was very strongly the second, not the first. I do not mean latching on in a conscious manipulative or fabricating way at all." 9. The formulation of these questions asked by the Tribunal leaves me in no doubt that the Tribunal saw the "latching on" inquiry as central to its function, and the interrogatory "which of those?" posed to Dr. Unwin confirms for me that the Tribunal saw the choice as one or the other. The Tribunal has, in my view, misconceived the reference by the Full Court in Kirkpatrick's Case to Tzikas's Case as laying down an alternative formulation of the statutory test of s.29. In my view, no such thing was done by the Full Court in Tzikas's Case. The facts in Tzikas were quite different from the present. That case concerned compensation neurosis. In fTzikas, there had been an earlier work-related neurosis. As the judgment of Sweeney and Woodward JJ. in that case indicates, the question in Tzikas was "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 apart in her present state of health that 1t 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." Those were the factual circumstances prompting the reference to a "sick mind getting sicker". In this case, the question 1s whether the neurosis 1s work related. It was never a question of whether 1t might be a case of a sick mind getting sicker. The question in this case is 10. whether the employment of Mr. O'Neill by the Commonwealth Banking Corporation was a contributing factor to the contraction, aggravation, acceleration, or recurrence of the disease from which he is suffering. In my view, the Tribunal impermissibly adopted words used ain different factual circumstances as the test for determining whether s.29 was satisfied rather than the language of the statute. As the learned primary judge noted:- ",..the language selected [in Tzakis] was not intended by the judges who used it as a universal solvent of this sort of problem..." In my view, the learned primary judge was right in allowing the appeal from the Tribunal. When delivering his reasons for judgment, the learned primary judge asked counsel to address him on the form of order he should make. After an adjournment, solicitors for the parties made submissions, including submissions on whether there ought to be a rehearing or whether the matter should be reconsidered by the member who constituted the Tribunal. His Honour indicated:- "I really thought there should be a rehearing, but I wanted to hear you on that." And, having expressed confidence 1n the member who constituted the Tribunal, he said "...the appearance of the thing is better 1f it is reheard by someone else." The matter was further adjourned and, on the resumed hearing, the solicitors for Mr. 11. O'Neill sought a rehearing before a member of the Tribunal other than the member who had first heard it. His Honour made orders that the appeal be allowed and the matter remitted to the Tribunal and that the matter be reheard before a member of the Tribunal other than the member from whom the appeal was brought. Section 44(4) and (5) of the Administrative Appeals Tribunal Act provides:— "(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision. (5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court." The appellant sought an order that the Administrative Appeals Tribunal as originally constituted reconsider the matter un the light of the judgment of the learned primary judge. It seems to me that the further disposition of the matter by the Tribunal was a matter that the learned primary judge carefully considered after hearing from the parties. In my opinion, no reason has been shown why this Court on appeal should in any way interfere with that order. I would dismiss the appeal with costs. | certify that this and the /O preceding Pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Spender d 7 V0 MA Associa Dried = AS / FY EB a IN THE FEDERAL COURT OF AUSTRALTA ) ) QUEENSLAND DISTRICT REGISTRY ) No. G 126 of 1987 ) ) GENERAL DIVISION Between: COMMONWEALTH BANKING CORPORATION Appellant And: TERRENCE MICHAEL O'NETLL Respondent BRISBANE 15 JULY 1988. REASONS FOR JUDGMENT CORAM: Fisher, Spender & Einfeld JJ EINFELD J: The respondent to this appeal was an employee of the appellant during his working life. From 1972 to 1981, he held the post of Accountant at its Atherton and Cairns branches. At the time of his retirement in 1982, he was suffering from a cardiac neurosis (the neurosis), that 1s a genuine belief by him that he had a heart condition which he in fact did not have. He claims compensation for the incapacity arising from this disease. The case 1s governed by section 29(1) of the Compensation (Commonwealth Government Employees) Act 1971 (the Act). This provides that: "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 the employment a compensation will be payable. As nothing here turms on whether or not this is a case of aggravation, acceleration and recurrence, the only relevant legal question for this case may be stated as whether the respondent's employment by the appellant was a contributing factor to the development or contraction of the neurosis. The Administrative Appeals Tribunal (the Tribunal) found on 24 April 1985 that the neurosis was unrelated to his work. But Mr. Justice Pincus held on 9 July 1987 that, in so determining, the Tribunal applied wrong legal criteria, and remitted 1t to the Tribunal to be heard by a different member. His Honour's reasons are now challenged, principally on the ground that they do not identify an error of law as required by section 44 of the Administrative Appeals Tribunal Act 1975. The appellant says that Pincus J clothed what was intrinsically a question of fact with a legal mantle. Alternatively, the appellant argues that the Tribunal was correct in law. This appeal thus amounts to a request for a finding that the learned primary Judge had no jurisdiction to entertain the appeal from the Tribunal. The Court was told that this was the first time a Full Court has been asked to antervene in this way, at any rate in a matter originating in the Tribunal. Pincus J identified the principal defect i1n the Tribunal's reasons as being: ", that 1t decided .. that the underlying disease from which (the respondent) was suffering was not related to his work, and did not attend sufficzently to the possibility that the work was a contributing factor to the disease " The Tribunal had described the respondent as "| a case of sick mind latching on to the work factors and not a case of work making a sick mind sicker " Of these observations, to which I return later, Pincus J said: "Tf one speaks of a person suffering from some physical or mental condition as having ""latcned on to" a particular cause, the implication scems to be that the cause ascribed by the victim is not tne true cause, although he pernaps thinks 1t 1s; but in my opinion the resolution of the difficult questions which arise when those whose duty it 1s to do so have to try to determine the causes of neuroses, depressions and the like 1s not assisted, but 1s 1mpeded, if one routinely substitutes for the statutory test figurative language used in determining a problem arising in a different factual context " I take his Honour to mean that the Tribunal has substituted the "latching on" and "sick mind sicker" language for the 1ssue required by the Act to be resolved, viz. whether the employment contributed to the contraction of the neurosis. For his Honour concluded: "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 1t as a universal solvent of this sort of problem is also clear." The stark language which drew this criticism from Pincus J appears to have emerged from a decision of a Full Court of this Court in Australian Telecommunications Commission v Tsikas (Smithers, Sweeney and Woodward JJ, unreported, 12 August 1985). This was a complex case involving a mMentalL illness not originally related to or caused by the worker's employment at the time of its contraction but which was aggravated by her later employment. The Tribunal as constituted for that case had identified four non-employment contributors to her incapacity for work and, according to the Full Court, confused these findings with the requirements of the Act, by failing to examine or determine whether and to what extent the identified factors were causally related to the employment. In that context, Sweeney and Woodward JJ said at page 15 of their joint judgment: "There 1s, of course, an important aifference between, on the one hand, the sequelae making a sick mand sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the 1llness, but not in such a way as to add to existing incapacity Since it tended to refer interchangeably to the sequelae contributing to the 1llness and contributing to the incapacity, we think it is likely that the distinction we have referred to was not always borne 1n mind by the Tribunal " Their Honours said also at page 16: "In the light of its findings, it cannot be said that the incapacity would not have occurred, or would have occurred at a significantly later tame, without the sequelae Could 1t be suggested that the extent of the incapacity would have been significantly less 1f the respondent's resentment about the aggravation and acceleration of her illness were not still operating? If the answer to this question 1s "No", 1s there any other way in which it could be said that the incapacity has been contributed to by the degree of aggravation or acceleration which any resentment can properly be sald to have caused? These are the questions for the Tribunal to consider In doing so, 1t will no doubt keep in mand its finding that total incapacity would by now have supervened in the absence of any aggravation or acceleration " What their Honours were saying was that in the fact finding process appropriate for that case, it was important for the Tribunal to have stated clearly those consequences of mental illness or disease which the Tribunal found as being or not being an aggravation or worsening of the disease. Thus the findings should have included whether (a) these consequences were employment-caused or related; (b) they or some one ox more of them had exacerbated the disease, making it perhaps more incapacitating than it otherwise would have been; or alternatively (c) they had merely been or heen used by the worker, even subconsciously, as am expression or part of the iliness, but with no adverse effect on the degree of incapacity. Tsikas was a case of the relationship between mental illness and, and its effects on, incapacity for work. It is thus quite different to the present case, and I cannot see how it can be used to justify the Tribunal's findings here. Further, I agree with Pincus J that Sweency and Woodward JJ were not espousing a general principle applicable, even by analogy, to any or every case of mental or neurotic disease. Their Honours were certainly not substituting for the section 29(1) test, some other formula which was to take precedence in mental illness cases. They were paraphrasing the second and third of the above alternatives open to the fact finding tribunal, and not addressing at all as _ this case requires, the first task it had to perform. Indced, the language of the Tribunal which Pincus J, as I believe correctly, considered to intrude so clearly on the problem set by this case, misses the point of the case altogether by focussing on the incapacity and not on the connection of the disease with the worker's employment. It is not to the point to say, as the appellant did here, that this question as to be resolved by commonsense and not' technical considerations (Migge v Wormald Bros. Industries Ltd [£1972] 2 NSWLR 29 at 44 per Mason JA; Kirkpatrick v Commonwealth of Australia [1985] 62 ALR 533 at 537; Baker v Willoughby [1970] AC 467 at 492 per Lord Reid) Nor is it relevant to assert that the question of causatlon or aggravation is essentially one of fact (Lindeman Ltd v Colvin [1946] 74 CLR 313; Garner v Burns Philp & Co Ltd [1949] 49 SR (NSW) 270; Federal Broom Co Pty Ltd v Semlitch [11964] 110 CLR 626 at 637 per Windeyer J; Migge (above) at 47; Rosmini v Chrysler Australia Ltd [1973] 6 SASR 212). This 1s because 1n this case the Tribunal simply failed to consider and resolve, as it was bound to do in the factual situation with which it was faced, this commonsense question of fact. The fazrlure to consider a relevant issue is an error of law, as the cases earlier cited show. (See also Steed v Minister for Immigration & Ethnic Affairs {1981] 37 ALR 620 at 621; Collins v Minister for Immigration & Ethnic Affairs [19811 36 ALR 598 at 600; Sullivan v Department of Transport [1978] 20 ALR 323 at 333, 349 and 350; Commonwealth of Australia v Duncan [1983] 44 ALR 249 at 261 and 267-70). The fact that conclusions both for and against the respondent were open, as Pincus J found, does not deprive the Tribunal's erroneous approach of a legal character, provided there was evidence before the Tribunal capable of supporting the finding 1n favour of the respondent. For it 1s an error of Jaw 1f a finding, available on the evidence upon the right question being posed, 1s not considered because it was not. Both Tsikas and Kirkpatrick (above) were cases where the workers' resentments towards the employers were relied on to ground entitlement to compensation, the resentment in each case flowing from the treatment of the worker by the employer. In Kirkpatrick, the treatment was the employer's failure to pay compensation for what the worker thought was a genuine compensable condition. The Full Court found at 536 that: there was evidence upon wnich it was clearly open to the tribunal to come to the conclusion, to which 1t came, that the applicant's compensation neurosis developed out of an allegedly disabling condition which was not itself compensable, that 1s, in the sense that it was not relevantly work related " The Court held at 536-7: "The fact that the applicant thought his disability arose out of his work, and therefore thought 1t compensapnle, may have been potent factors 1n the development of his neurosis But these were thoughts 1n his mnd_ They did not mean that his employment actually was a contributing factor 1n the development of his neurosis The contrary view would lead to absurd consequences For example, a worker might wrongly believe that a bo1l was suffered as a result of dust at work and become resentful upon the proper rejection of his claim If such a worker then developed a neurosis, 1t would seem to be a necessary consequence of the applicant's argument, if correct, that he would be entitled to compensation for the neurosis arising solely out of the correct refusal of the claim for compensation for the boil." It is not necessary to pass on that passage in this case, because here there was expert medical evidence on which a finding of causation could have been made. A psychiatrist, Dr. Unwin, whose evidence the Tribunal accepted, said that the respondent was "worried about his (work) pexformance all the time" and that his symptoms "caused him to fear about his performance at work". Dr. Unwin was asked in cross examination " to distinguish between the situation where work is actually a contributing factor to the aggravation or acceleration of his disease, and a situation where a sick person latches on to his work as being the cause or an aggravating factor (of his disease) " He answered: t I would say 1t was very strongly the second, not the first I do not mean latching on in 4a _ conscious manipulative or fabricating way at all " However, 1n re-examination, this exchange took place: Q "You have told us that (1n) the case of (a) sick mind getting sicker, one of the factors contributing towards that increasing sickness 1s the work situation - the work pressures? A I am sure that 1s true Q . . would you agree that the work pressure that this man says he underwent between 1974 and 1979, 1980, was a contributing factor in producing his condition? A Yes. I may be seeming to say the two things are the opposite, but I amnot. . ... If a person 1s having this problem with his fears of his longevity, his life, his heart, ete and in fact is centering these around his work, then it 1s not important whetner those pressures are real, or anything They jn turn Will create more anxiety and worry, and that in turn will make him more fearful. Q If (the) worrying about his work (1s) such that it 1s exhibiting the sort of symptoms (he) went through (1s that) suggestive of the fact that his work 1s contributing or, adding to, or aggravating his underlying mental health? A if the attitude to work 1s one of fear, tnen any relationship to the work 1s going to aggravate the condition Q So this 1s a case, 1s 1t, where he has an underlying neurosis which has developed and is aggravated or ameliorated from time to time ona number of factors? A Yes I think that he has sensitive areas in a number of situations, and I cannot tell you the intricate details of wny that 1s focussed on work at the moment fear 1s usually a combination of the particular work pressures 1n the particulaz person " Notwithstanding this evidence, albeit produced by leading questions, but relying upon the views of the Full Courts in Tsikas and Kirkpatrick, the Tribunal said that 1t was The 1" unable to relate the respondent's incapacity to work to any contribution of his employment by the kank to the contraction, aggravation, acceleration or recurrence of his disease; the fact tnat his problems would recur if he returned to that work is not the test prescribed by paragraph 29(1)(b) of the Act In my view, 1t was at the relevant time a case of a sick mind latching on to the work factors and not a case of work making a sick mind sicker " unrelated to his work despite his own views to the contrary assurances from the medical profession. Tribunal went on to find that the respondent's neurosis was and despite . - 10 - With due respect, these observations and findings do not correctly apprehend or summarise the evidence of Dr. Unwin, and have impermissibly read or extended the two Full Court decisions. Connair Pty. Ltd v Fredericksen [1979-80] 142 CLR 485 involved a pilot who developed a phobia of flying following his work experiences in the Northern Territory during Cyclone Tracy. A Full Court of the Federal Court [1978] 20 ALR 579 had divided 2 to 1 ain favour of the causal relationship of the phobia to the employment. The High Court divided 3 to 2 in coming to the same conclusion. Summarising the evidentiary pesition at 491, Gibbs J for the majority said: "The evidence of the respondent himself shows that from about April 1970 onwards he becaire concermed apout the safety of the appellant's aircraft, particularly because of what he regarded as inadequate standards of maintenance and repair He gave evidence of incidents when an aircraft engine failed or other defects appeared during flight, and of his complaznts to the management and engineers of the airline, which he thought were disregarded Evidence was given on behalf of the appellant that the standards of the airline were high, and its safety record good, and the learned trial judge found that "towards the end of his flying life the respondent must have been tilting at windmills" It is not necessary to attempt to decide whether any of the complaints made by the respondent were well-founded in fact, but it 1s not suggested that the respondent's concern was other than genuine It may however, be observed, without in any way reflecting on the airline, that one of the appellant's witnesses said tnat he himself had experienced engine failure in flight and had been forced on three occasions to land with his undercarriage e1lther retracted or not locked down " At 494, having correlated "the employment" to "the nature of the employment" as required by the legislation then under consideration, his Honour said: For although the eccentricities of animate behahviour may cause persons and animals to act contrary to their natures, the same is not true of employment, and when it 1s proved that a disease was caused by (and not merely contracted during) the employment, and it appears, either by proof or as amatter of common knowledge, that the incident, aspect or characteristic of the employment that caused the disease 1s one that would be expected to occur in employment of that class, 1t would seem to follow that the disease was due to the nature of the employment " In words that eas1ly apply to the facts of this case, Gibbs J said at 497: "In the present case, it 1s clearly established on the balance of probabilities that the respondent had a personality which predisposed him to the an:1ety state from which he now suffers It 1s umimportant to decide whether that pre-existing condztion was 1tself a disease, but in my opinion it was not It is further established by the evidence of the psychiatrist that altnough the underlying cause was within the respondent's own mind, the disease was precipitated by the stresses to which he was subjected and under which he broke Not all of those stresses were caused by his employment, but many of them were, includirg those that arose during the aftermath of the cyclone, and particularly those caused by flying aircraft he tnought to be unsafe " With the appropriate adjustments for the factual situation here, this seems to me to have becn Dr. Unwin's reasoning for the cause of this respondent's neurosis. It was certainly open to the Tribunal so _ to find. That it did not even consider doz1ng so constitutes a clear error of law on the Tribunal's part. Accordingly, it 1s my opinion that Pincus J was correct in holding that the Tribunal erroneously misdirected itself on the question here in issue on the evidence before 1t. His Honour therefore had jurisdiction e -12- to entertain the appeal, and in my view correctly disposed of ait by remitting the matter to the Tribunal for consideration of the true issue raised. A further argument was advanced by the appellant that in upholding the appeal from the Tribunal, Pincus J should have remitted the matter to the same member of the Tribunal. I disagree. It appears firstly that counsel for the appellant did not object to the order made by the learned primary Judge in this respect. This might itself be sufficient to dispose of the point. But there 1s a more fundamental objection to the appellant's argument. In his consideration of the evidence, and in his findings, the member enunciated a distinct and in his view decisive preference for reading the medical evidence which favoured the appellant on the effect of the neurosis on the respondent's capacity for work. In doing so, he effectively or perceptually rejected the evidence which would have favoured the respondent 1f the right question had been asked. In my view a fair minded observer might now entertain a reasonable apprehension that the same member could not bring an unbiased mind to the same cvidence, free of prejudgment, when considering the correct question (Livesey v The New South Wales Bar Association [19831] 151 CLR 288). I would therefore dismiss the appeal and order the appellant to pay the respondent's costs. ) Asgrciaie Helle, ener pe. etl Dated 15 Gury 1968 ' . es pe res t | bl certiy the! #3 cad iro ELEVEN priewlirg coreg 23 2 wl crn of th : Fecs.rs for feet atte aoe yc Ro Honour | } ftir dusseo Crucis Fi i 1 F| t Counsel for appellant: instructed by: Counsel for respondent: instructed by: Date of Hearing: Date of Judgment: Mr. A. Emmett Q.C. and Mr. P. Arden L.C. Hollis Mr. R. Cooper Q.C. and Mr. V. Green Cooper, Grace & Ward 24 November 1987 15 July 1988