FEDERAL COURT OF AUSTRALIA COMMONWEALTH EMPLOYEES' COMPENSATION – Central serous retinopathy – Disease or injury – Whether link between stress suffered in course of employment and condition – Tribunal not satisfied on balance of probabilities of existence of link – Whether thus wrongly imposed onus of proof on applicant. Compensation (Commonwealth Government Employees) Act 1971 ss 27, 29 Accident Compensation Tribunal v McIntosh [1992] 2 VR 253 cited New South Wales Associated Blue‑Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 applied Mills v Australian Postal Corporation (1994) 19 AAR 330 applied Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 applied McDonald v Director General of Social Security (1984) 6 ALD 6 mentioned RICHARD MINDIN v COMCARE VG 605 of 1997 SUNDBERG J 30 SEPTEMBER 1998 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 605 of 1997 BETWEEN: richard mindin Applicant AND: comcare Respondent JUDGE: SUNDBERG J DATE OF ORDER: 30 SEPTEMBER 1998 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's taxed costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 605 of 1997 BETWEEN: richard mindin Applicant AND: comcare Respondent JUDGE: SUNDBERG J DATE: 30 SEPTEMBER 1998 PLACE: MELBOURNE REASONS FOR JUDGMENT BACKGROUND On 18 August 1995 the Administrative Appeals Tribunal affirmed a decision that the Department of Defence was not liable to pay the applicant compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") in respect of central serous retinopathy ("CSR") suffered by him. The applicant successfully appealed to this Court against the Tribunal's decision. O'Loughlin J set aside the decision on the ground that the Tribunal had not determined whether the CSR constituted a "disease" under s 29 or an "injury" under s 27 of the Act, or whether, if the applicant suffered stress in the course of his employment, there was a causative link between the stress and the CSR for the purposes of s 29 or s 27. His Honour remitted the matter to the Tribunal for rehearing. On the rehearing, after receiving additional evidence and submissions, the Tribunal affirmed the decision under review. The present application is an appeal from that decision. LEGISLATION Section 27(1) of the Act provides that 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 liable to pay compensation in respect of that injury. Section 29(1) deals with employees who contract a disease or suffer an aggravation, acceleration or recurrence of a disease where employment by the Commonwealth was a contributing factor to the condition or aggravation etc. Where total or partial incapacity for work results from the disease or aggravation, the condition or aggravation is deemed to be a personal injury arising out of the employment: sub‑s (2)(e) and (f). The word "injury" is defined as any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease, or the aggravation, acceleration or recurrence of a disease. The word "disease" is defined to include any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development. EVIDENCE BEFORE TRIBUNAL At the second hearing before the Tribunal there was no dispute as to the evidence relating to the applicant's history that had been summarised in the Tribunal's earlier decision. The applicant was born in Burma in 1940. He joined the Burmese armed forces and became a pilot. In 1969, following a change of government in Burma, he and his wife went to Thailand where he fought with resistance fighters against the Burmese Government. In 1971 he migrated to Australia, and on 3 February 1972, after trying unsuccessfully to enter the Royal Australian Air Force ("RAAF"), joined the Australian Army. In November 1973 he was transferred from the Royal Australian Armoured Corps to the Australian Army Education Corps as a teacher. He progressed through the ranks, and in March 1980 was commissioned a lieutenant and transferred to the RAEME Education Corps at Bandiana. In December 1980 he was posted to RAAF Point Cook at his own election in order to learn to speak and write the Thai language. There is no relationship between the Thai and Burmese languages: the former is based on Chinese and the latter on Sanskrit. The applicant spent 1981 on an intensive course in Thai. He said he experienced difficulty in learning a third language taught in English, which was his second language. He claimed that when he informed the Captain responsible for teaching Thai at Point Cook that it was intended that when he had completed the course he would replace the Captain, the Captain decided that the applicant would not pass the course. However, the applicant did pass in December 1981. In 1982 he was posted to Bangkok to live as a civilian, to undertake further formal study in the Thai language and to experience the culture of Thailand. His wife, two children aged 14 and 4 and his mother‑in‑law accompanied him to live in Bangkok. Prior to leaving Australia, he sold his house in Adelaide and deposited the funds into a bank account held jointly with his wife. The applicant rented accommodation in a Bangkok suburb. He said that his wife and family experienced great difficulty living in Bangkok. They did not speak the language and found the weather and pollution oppressive. He said he was away all day attending the Union Language School, had a tutorial in the early evenings, and studied further at night. He thus had little time to spend with his family. He said that neither the Australian Army nor the Australian Consulate had provided any support to his family. There were occasions when, as part of his course, he was obliged to undertake weekend and other excursions which took him away from his family. One day he returned home to find his wife with another man. A violent fight broke out between the two men. At the end of August 1982 he came home to find that his wife, children and mother‑in‑law had left the home taking the furniture with them. They had returned to Australia. He subsequently discovered that his wife and mother‑in‑law had spent the proceeds from the sale of his Adelaide house. He finished the year in Bangkok but did not pass the course. He returned to Australia, and in 1984 he became the officer in charge of teaching the Thai course at Point Cook. He had other postings, and until he reached compulsory retirement age in late 1995 remained a serving officer in the Australian Army. The applicant said he first experienced problems with his eyes while he was studying Thai in Australia in 1981. He was finding the intensive study a strain on his eyes. He was prescribed glasses to correct a mild hypermetrophia. However, in July or August 1982 he lost the central vision in the left eye. Although he had sought assistance with respect to the condition while he was in Bangkok, it was not until he returned to Australia that the diagnosis of CSR was made. CSR is constituted by a scarring of the retina in the area of the left macula. It is permanent and it affects the central vision of the left eye. Apart from assisting the applicant to deal with the condition, there is no corrective treatment which can be undertaken. Before the Tribunal Dr Norton Taylor and Dr Parkin gave evidence on behalf of the applicant. Dr Norton Taylor is an opthalmological surgeon and Dr Parkin is a consultant psychiatrist. Dr Gale gave evidence on behalf of the respondent. Dr Norton Taylor and Dr Gale agreed that CSR is a condition of no known aetiology. Dr Gale said that it occurs predominantly in young to middle‑aged males. Dr Norton Taylor said that it occurs apparently spontaneously, and although its cause is not known, there are factors which predispose to it. The onset of the condition may be gradual or acute. The opthalmologists were agreed that the condition may resolve itself with little apparent effect or may leave the patient with scarring to the eye and permanent damage. They were also agreed as to what occurs when CSR develops. The condition arises from an inability of the system which governs the exchange of fluids and oxygen nutrients between the blood vessels and the eye tissue to remove small amounts of excess serous fluid when it lodges in the central retina area. The opthalmologists also gave evidence as to whether stress contributes to the onset or aggravation of CSR. Dr Norton Taylor was of the view that stress was a not uncommon contributing factor to the condition. He referred to a passage in a text about CSR in which it was said that the condition "has also been identified as occurring in those who are 'hard driving and tense'". He said that both acute stress (trauma) and chronic stress could be a cause of the onset of CSR. He said that incidents of traumatic stress cause or may cause the arteries to dilate and expand more rapidly than occurs in the normal cycle. He agreed that traumatic stress brought on by fear or anger may cause this to occur. He said that the more rapid contraction/expansion of the arteries caused by the traumatic event may in turn be the cause of more liquid being introduced into the affected area of the eye than the eye can readily absorb. It followed that it may be speculated that intense trauma is the cause of the condition. Dr Norton Taylor agreed that the trauma suffered by the applicant in finding his wife in bed with another man may have been the "initial precipitating factor to start the chain of events". He went on to say that an initiating event having occurred, it may be that later non‑traumatic stress will aggravate or contribute to the condition. Dr Gale said that there was no reasonable basis for the view that CSR is in any way related to doing close work, even extensive close work with a high degree of concentration. He rejected Dr Norton Taylor's opinion that chronic stress may play a part in predisposing a person to CSR. He said that if Dr Norton Taylor were correct, there would be a much higher incidence of the condition in the community than there is in fact, because of the existence of high levels of tension in the general community. Referring to the comment about those who are "hard driving and intense", Dr Gale said that this referred to a person's underlying characteristics and not to external stress applied to the person. Dr Parkin gave evidence that the applicant had experienced a "severely stressful period" in Thailand; that "the loss of his relationship, his marriage and what he thought would be his career in addition to the very significant stress that he was under in learning a language was such as to stress him excessively". In its first decision the Tribunal said that it had not taken into account Dr Parkin's suggestion of a connection between stress and CSR because he was not a qualified opthalmologist. TRIBUNAL'S REASONING Having summarized the medical evidence in substantially the form set out above, the Tribunal considered whether the applicant's CSR was a "disease" or an "injury". It noted that both opthalmologists regarded the condition as a disease rather than an injury, and that while their opinions were not directed to the definitions of those words, it found their characterisation of value in coming to its decision. The Tribunal continued: While the Doctors agree that the cause, or causes, of the condition arising is, or are unclear, they are clear as to what occurs. The evidence of both Doctors was that the condition arises from an inability of the system which governs the exchange of fluids and oxygen nutrients between the blood vessels and the eye tissue to remove small amounts of excess serous fluid when it lodges in the central retina area. Having regard to their evidence, the Tribunal is satisfied that central serous retinopathy is a "disease" as defined in s 5 of the Act as it is a "… physical disorder, whether of sudden onset or gradual development". The Tribunal then turned to whether there was a causative link between the stress the applicant suffered and CSR for the purposes of s 29. The Tribunal said: The Tribunal accepts the evidence of Dr Gale that if stress is a factor in the onset of the disease then it is likely to result from a traumatic incident of stress, rather than from chronic stress. There is evidence of a traumatic incident, namely the applicant finding his wife in bed with another man, coupled with a physical fight with that man, which provides an explanation in this case if stress and the onset of the condition are, in fact, connected. These events came about as the result of circumstances connected with the applicant's private life, and are nothing to do with his employment. The Tribunal is satisfied that there is no traumatic stress‑related employment incident which would connect the onset of, or the aggravation of, the applicant's disease. Dr Norton‑Taylor's evidence gave rise to the possibility of there being a connection between both traumatic and/or chronic stress with respect to the onset of the condition and the latter with respect to its aggravation. With respect to chronic stress, and whether it may make an individual more susceptible to the onset of the condition when combined with traumatic stress, the article by Dr Bird, relied on by Dr Norton‑Taylor gave support only inasfar as it connected an underlying personality trait ("hard driving and intense") as possibly being related to the condition. This evidence, in the opinion of the Tribunal, does not amount to anything more than speculation as to the possibility of a connection existing. Dr Norton‑Taylor said in the previous hearing that he saw two to three cases of the condition per year (exh 2 p 123). While Dr Norton‑Taylor is no doubt an experienced specialist given the paucity of cases which arise, his opinion that there may be a connection between chronic stress and the onset or aggravation of the condition must be of very limited value in the absence of more detailed and definitive research, particularly when that evidence is rejected by an equally eminent specialist, ie Dr Gale. Accordingly, the Tribunal accepts Dr Norton‑Taylor's opinion as being speculative of the existence of a possibility of a connection between chronic stress and the onset of the condition and equally with respect to any connection between chronic stress and the aggravation of the condition. It follows that Dr Norton‑Taylor's evidence does not leave the Tribunal satisfied as to the requisite standard – the balance of probabilities. From this, the Tribunal is satisfied that any stresses associated with the applicant learning the Thai language via English, which was already a second language for him (Burmese being his first language), were not contributing factors to any stress which may have caused the onset of the condition or its aggravation. GROUNDS OF APPEAL (a) Disease or injury The first ground of appeal is that the Tribunal was wrong in law in finding that the applicant had suffered a disease rather than an injury. This was not a ground in the notice of appeal. However the respondent did not object to its addition, and I allowed the amendment. It was submitted for the applicant that on the evidence the Tribunal was "compelled to determine" that CSR was an injury rather than a disease; that the evidence "bound the Tribunal to find" that it was an injury. It was said that the Tribunal had failed to test whether CSR was an "injury" and had thus made an error of law. The formulation of the submission – "compelled to determine" and "bound … to find" – recognises that the appeal to this Court is limited to questions of law, and that it is not enough for the applicant to show that while there was evidence to support the Tribunal's conclusion, there was evidence the other way which should have been preferred. There was evidence before it on the basis of which the Tribunal concluded that CSR was a disease. Both opthalmologists described CSR as a disease and not an injury, though the Tribunal did not regard this as conclusive. On the description they gave as to the onset and characteristics of CSR, it was open to the Tribunal to conclude that it was a physical disorder, whether of sudden onset or gradual development. Cf Accident Compensation Tribunal v McIntosh [1992] 2 VR 253 at 264. I do not accept the submission that the Tribunal failed to consider whether CSR was an "injury" and so failed to discharge its appointed task. The Tribunal recorded that the matter had been remitted to it because O'Loughlin J had determined that in its first decision it had failed to decide whether CSR was a disease or an injury. It set out the two definitions, and obviously took the view, correctly in my opinion, that on their proper construction that which is a "disease" as defined is not an "injury". Having decided that CSR is a "disease", there was no occasion for it to consider further the definition of "injury". (b) The bedroom incident The second ground of appeal is that the Tribunal was wrong in law in determining that the occasion when the applicant found his wife in bed with another man, and the fight that ensued, had nothing to do with the applicant's employment. It was clearly open to the Tribunal to conclude that the bedroom incident was not employment related. Indeed it was a bold submission that it was related to the employment. (c) New language The complaint here is that the Tribunal was wrong in law in determining that stress associated with the applicant learning a new language was not a factor relevant to the disease. It was said that the Tribunal had failed to take account of the evidence of Dr Parkin that the stress of learning the Thai language was "very significant". Dr Parkin, a psychiatrist, noted the very significant stress the applicant was under in learning a language which was different from the ones he had spoken all his life. The Tribunal recorded this evidence, and it is accordingly wrong for the applicant to assert that it failed to take it into account. In any event, in the course of cross‑examination Dr Parkin conceded that he was not an expert as to the relevance of stress to eye condition, and that he did not venture into that area. It is accordingly not surprising that the Tribunal did not spend any more time on Dr Parkin's evidence. Dr Gale said that there was no real evidence that learning the Thai language would lead to CSR. Dr Norton Taylor agreed with Dr Gale's opinion that there is no reasonable basis for the view that CSR is in any way related to doing close work, even extensive close work with a high degree of concentration. He also agreed with Dr Gale's conclusion that CSR is not related to the stress that occurs in "normal day life of one who is working hard or harder than one is capable of". However he said that the pressures of study in a foreign language coupled with domestic problems may have contributed to the CSR. It was for the Tribunal to decide whether it preferred Dr Gale's evidence or Dr Norton Taylor's. It accepted Dr Gale's, and it was open to it to do so. In any event, there being evidence on which the Tribunal could have decided either way on the language issue, its decision was one of fact. See New South Wales Associated Blue‑Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 511‑512; Mills v Australian Postal Corporation (1994) 19 AAR 330 at 333‑334; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 10. (d) Burden of proof The applicant's submission was that the Tribunal expected the applicant to establish a causal connection between his employment and the disease. At the beginning of its reasons the Tribunal said that the applicant bore no onus of proof, and that the Tribunal must reach the correct or preferred decision having regard to the material before it. The applicant asserts that the Tribunal did not remain true to that injunction. Attention was drawn to the fact that at a later point in its reasons it said that Dr Norton Taylor's evidence did "not leave the Tribunal satisfied as to the requisite standard – the balance of probabilities". I do not regard the two statements as inconsistent. The Tribunal did not in the later passage impose an onus on the applicant. It told itself that in order to be satisfied one way or the other it had to have regard to the balance of probabilities. No error of law is established. See McDonald v Director General of Social Security (1984) 6 ALD 6 at 10‑11, 21‑22. (e) Dr Norton Taylor ‑ speculative It was submitted for the applicant that the Tribunal was wrong in law in rejecting as speculative Dr Norton Taylor's evidence that there was a possible connection between chronic stress and CSR because it was based on his experience of only two or three cases per year. The Tribunal had Dr Gale's evidence that there was no connection and Dr Norton Taylor's evidence that there may be. It was open to the Tribunal to prefer Dr Gale's evidence; it made no mistake of law in doing so. Further, it was not in error in describing Dr Norton Taylor's thesis as speculative. In the course of his evidence he agreed that it was "a bit speculative, certainly" and "purely speculation". (f) Inadequate reasons It was said that the Tribunal was wrong in law in not providing adequate and sufficient reasons for its decision. This is a quite meritless ground. The Tribunal's reasons are clear and lucid. The facts are set out, in part by reference to its earlier decision. The medical evidence is accurately summarised. The two issues for decision are clearly articulated. The reasons for decision on each issue are quite clear. This ground of appeal should not have been advanced, and should not have been persisted in. CONCLUSION The application must be dismissed with costs. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg Associate: Dated: 30 September 1998 Counsel for the Applicant: D De Marchi Solicitors for the Applicant: De Marchi & Associates Counsel for the Respondent: J Lenczner Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 September 1998