Robert J Santilli v Manilla Shire Council [2003] NSWCC 8

Compensation Court of New South Wales

CITATION : Robert J Santilli v Manilla Shire Council [2003] NSWCC 8 Robert J Santilli PARTIES : v Manilla Shire Council MATTER NUMBER(S) : 60226 of 2001 JUDGMENT OF: Geraghty J at 1 CATCHWORDS: Assessment of Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 01/10/02, 19/02/03, 20/02/03, 21/02/03 EX TEMPORE JUDGMENT DATE : 02/21/2003

FOR APPLICANT: Mr D J S Jenkins instructed by Commins Hendriks LEGAL REPRESENTATIVES: FOR RESPONDENT: Ms W S Strathdee instructed by Hunt & Hunt

JUDGMENT: 1. Robert Santilli claims weekly benefits from 28 October 2001 to date and continuing and payment of medical expenses pursuant to s 60. His claim is based on the nature and conditions of employment as a director of corporate and financial services for the Manilla Shire Council, between July 1995 and 28 August 2001, because of which, he alleges, he sustained a psychiatric injury which and continues to incapacitate him. 2. The question of capacity is the principal issue in this case. I was informed at the beginning of the hearing that injury was in issue, though ultimately it did not seem to be seriously in issue, particularly after Dr Shand's reports (Exhibit 2) were tendered in the respondent's case. However, there was also an issue as to the application of the provisions of s 9A and s 11A, though again, s 9A was not seriously argued and was put to bed in any event by the medical reports. S 11A remained an issue. 3. The applicant's case was set out at great length by himself, and was supported by his wife, Donna Santilli, who has supported her husband throughout his employment. She left a good, well-paid position in Tamworth in May 2002 to look after the applicant and she is very largely responsible for his continuing improvement. He suffered an adjustment disorder because of his work conditions, and this has resulted in periods of depression and anxiety. 4. The respondent called the general manager, John Hunt. He was responsible for restructuring the Shire Council administration in June 1995, for appointing Santilli as the director of one of three departments, namely, the department of corporate and financial services, and appointing two other directors, Peter Ullman as director of engineering and technical services, and Ron Vankatwyk, the director of environmental and health services. 5. The respondent's case was also presented by two employees who had worked with the applicant in his department, Trish Bennett and Sarah Stokes (now Thurn). The other employees in that section (Ray Lawes and one other member of staff that varied from time to time) were not heard in the proceedings. 6. There seemed to be no dispute, at least on the medical evidence, that the applicant has sustained a psychiatric injury. In October 1995, according to the reports of Dr Henderson (Exhibit A), Santilli consulted the practice in which Dr Henderson was working and complained of tiredness and burn-out. There was no time away from work, no treatment, and no follow-up consultation until 4 July 2001, when he again presented, this time to Dr Henderson, under the impetus and encouragement of his wife, complaining of loss of energy, excessive tiredness, loss of sleep and pains in the left chest and back. Dr Henderson considered that the symptoms were really a somatisation of his patient's emotional discomfort. Santilli told the doctor that he was experiencing multiple difficulties at work ranging from complaints by other employees about him, harassment, discrimination, long nights, abusive behaviour, poor working conditions. Bearing in mind that the applicant was not functioning well as at July 2001. It could be (and I consider it highly likely) that he was exaggerating his work conditions at that point, but this was only a symptom of how he was feeling at the time. 7. Dr Henderson recorded that these incidents at work triggered uncontrollable bouts of crying, domestic disharmony, poor sleep patterns, excessive anger, a complete aversion to work and to any thought of entering the workplace. He considered that his patient's employment was a substantial contributing factor. The doctor diagnosed acute anxiety/depression/crisis and referred his patient to a Dr Synott whom he saw on one occasion for psychiatric treatment. I have not seen any report from Dr Synott setting out the complaints, the history or any diagnosis. 8. I do have before me, however, two other psychiatric reports. A series of reports from Dr Akkerman (Exhibit B) and two reports from Dr Shand (Exhibit 2). 9. Santilli was interviewed by Dr Akkerman in December 2001 and again in December 2002, at which point the applicant had made a marked improvement. 10. In December 2001, the worker was still living in Manilla. He moved to his home town in Armidale in about June 2002 and after that time, he began to experience, according to his wife and himself, a marked improvement in his condition. As at December 2001, according to Dr Akkerman, the applicant's mood was mildly depressed. His concentration and short term memory were diminished. He was described by the doctor as an obsessional man who was preoccupied with details, though he was open-minded and interested in getting better. The obsessional character was evident to me in the applicant's preparation of some of the documentation which are now exhibits, particularly Exhibit D which consists of three folders, a very detailed index and a lot of tabs. 11. Dr Akkerman diagnosed major depression which, he said, was a consequence of work stressors. On the information provided by Santilli, he considered that the Council had acted in an unreasonable manner. At that stage, in December 2001, Dr Akkerman thought Santilli was totally incapacitated for any kind of work. 12. A marked improvement had occurred by December 2002 when Dr Akkerman re-examined Santilli. However, the doctor recorded, the applicant told him that he still had some minor difficulties. For example, he got tired after one to one and a half hours; he could not multi task; he was still unpacking after his move to Armidale; and though he was positive regarding his future, he seemed to have lowered his expectations. On questioning, Santilli told Dr Akkerman his concentration was reasonable; his short term memory was still a bit down; his level of energy seems normal; his level of interest in things also seems normal; his appetite was normal; his weight was up; his libido was normal but he still had a bit of irritability. He was not tearful and his sleep was also largely normal. The doctor thought that the major depression was in remission and that he had made good progress. He considered that a lot of the applicant's symptoms had reduced in intensity, although there were still some symptoms present and Santilli was more impaired than he realises. 13. Dr Akkerman recorded that Santilli believed he was in a position to return to work, adding - but I believe that at the moment he will only be able to do fairly light work on a part-time basis. The doctor recorded that Santilli realised himself that he was getting tired after one or one and a half hours. He considered that Santilli was capable, as at December 2002, of doing some part-time work, though he was not capable of doing executive work. He thought that he might be able to return to full-time work around Easter of 2003. 14. In providing some explanation of the applicant's condition, Dr Akkerman commented: Basically, what happened was that Manilla Shire Council took advantage of Mr Santilli's obsessional nature. He is keen to please and is a hard worker. As a consequence, he was asked to do more and more work until eventually he was asked to do so much work that he could not cope with it any more. This was when he developed major depression. 15. Well, there was some dispute among the witnesses as to the extent of the work the applicant was doing throughout the years. I will come to this in due course. 16. Dr Shand first examined Santilli in March 2002. He recorded a very long and detailed history of the applicant's experience with the Council from about 1993, noting that even as early as 1993, there had been quite a lot of acrimony in the office. The complaints as recorded by Dr Shand seem to reflect a quality of much greater vividness and anger than was evidenced by the applicant in his presentation in court. I bear in mind that the applicant, in May 2002, had left his employment only about 6 or 7 months previously, that he was still living in Manilla in the midst of the crisis and was still coping with the problem. It seems to me that, bearing in mind the diagnosis of depression and anxiety, it is understandable that his history recording at the time was tempered by how he felt, that his memory was tainted by his reactions and that over time, the memories have softened. 17. Dr Shand recorded a long list of current complaints which I will not recite here. It includes organisational task problems, insomnia and confusion, reduction of libido, some suicidal depression, poor concentration, et cetera. The doctor thought the applicant suffered, as at March 2002, a chronic adjustment disorder with depressed and anxious mood which had increased progressively since 1998. He said that these symptoms of anxiety and depression had persisted though the applicant himself admitted that he had been improving on treatment with anti-depressant drugs. 18. From the history, Dr Shand concluded that Santilli was unfit to return to his usual work with the Council, and that his employment had been the major, and perhaps the only, contributing factor to the development of the disorder. He considered that the applicant's disorder was not stable, that the history suggested some chronicity. The doctor reserved his opinion as to whether improvement, and perhaps full recovery, would occur, given time, treatment and the absence of stressors. Given the diagnosis of adjustment disorder, it would seem that after the removal of the stressors, the condition would gradually abate over time. 19. In his report of November 2002, Dr Shand recorded that Santilli still had some moments. He was still tired, not fit, and suffered some irritability. Dr Shand thought he was almost normal and was confident that he would make up the small balance of improvement to a full state of health. 20. The hearing of this claim spanned 3 days and, in addition to the extensive evidence the applicant gave in-chief and in cross-examination and in addition to the supporting evidence of his wife, Donna, the other employees of the Council gave lengthy evidence which I do not propose to recite in detail because there does seem to be a general pattern. 21. The applicant complained of three major stressors in his workplace, particularly since 1998. He had been the director of one of the three services of the Council and had had responsibility for the supervision of four of the employees, as well as the responsibility of preparing a number of reports and statements. 22. Santilli complained that he had to meet unrealistic deadlines which involved excessive overtime, that the staff did not give him the cooperation and support he needed (though the staff denied this) and that the staffing level was below what the jobs seemed to demand. 23. The second stressor was during a period in 1999. A claim for access to the general manager's employment contract under the Freedom of Information legislation was made. This created considerable stress between Santilli and the general manager, and some personal conflict between his role as a public officer of the Council subject to the general manager, and his role as a delegate of the Council itself for the purposes of the Freedom of Information legislation. 24. The third area of stress was generated because of the applicant's own management style. There was deep conflict from time to time, at least in the Council office from 1994/95, perhaps even earlier. There was personality conflicts in the general staffing of the Council, and particularly in the applicant's own section. 25. Those who gave evidence and who were employed by the Council all agreed that at times, the atmosphere was of an unhappy, tense workplace, though I should observe that the picture painted to Dr Shand by the applicant seemed truly atrocious so that I doubt whether that situation would have been tolerated by the general manager or by either Bennett or Stokes. There was some dispute between the witnesses as to the hours of overtime. The applicant, for example, gave evidence that he was working 10 hours on his shortest days in 1995, 14 or 15 hours on his longest days. He was working 5 days a week and on weekends, sometimes beginning at 8 o'clock in the morning and working through until 1.00 or 2.00 in the morning. 26. Mr Hunt thought that the applicant was working about 45 hours a week, though his assessment seemed to be based more on an agreement with the applicant about the provision of a car. The best, but very ambiguous, evidence was to be found in the security coded records (Exhibit 3) which showed the comings and goings of employees, particularly on the weekend. There was some doubts even about the accuracy of these records. There was also some dispute about the circumstances of the conflict on the Freedom of Information application. But putting these matters aside, it does not seem necessary to come to a final conclusion about these things because there was general agreement that the office experienced tensions and anxieties, and particularly at regular stages throughout the year. 27. It was also apparent on both sides of the record that the workload was heavy, the deadlines pressurised. So the work conditions seem to have been an explosive cocktail. On the one hand, there was a personality who was compulsive and obsessional by nature, as the doctors seemed to have agreed and as Exhibit D would seem to indicate. Another element in the cocktail - the other personalities in the office, their interactions and the tensions between them, particularly between them and the applicant himself. Added to the cocktail were a heavy workload and deadlines, including an annual budget, quarterly financial statements, monthly Council meetings, and the preparation of base statements and the introduction of the GST. Sometimes the applicant received some assistance from other departments, sometimes he did not. Finally, there was the applicant's excessive overtime. 28. Now, whatever evidence I accept (and it seems to me that the applicant did exaggerate his position), I found the applicant's wife evidence persuasive, and the other members of the Council staff who were called did not gainsay the fact that the applicant did work impressive hours of overtime. This cocktail gradually, over time, created more and more problems. Gradually Santilli's mental and physical health began to deteriorate, especially from 1998. There was a spiralling downwards of his condition. Symptoms began to feed and fester. There was a gradual build-up of pressure and problems, and when the GST was introduced by the Commonwealth Government, it only added extra burden to the applicant and his staff, putting pressure on a computer system which was not designed to function with this extra load. 29. The situation in which the applicant found himself was not always under his control and, being the kind of person he was, he wanted to maintain control. The director of the engineering and technical services and the director of the environmental health services were not presenting him with information when he needed it in order to prepare the budgets which had to be handed down on a given date and at a set time. He was not receiving full cooperation and back-up. This was creating a sense of frustration, though I note that the lady who is now preparing the budget papers and the statement says that she is receiving cooperation from both the other departments. It seemed to me that when the applicant was complaining to Dr Shand, there was some unpleasantness between some of the directors, and that the applicant at least perceived that he was being disadvantaged, punished, persecuted and harassed by at least one of the other directors. Whether this was true or not, I do not know. However, it was not put to Santilli that he was given the necessary information by the other directors when he required it. So I can only assume that Mrs Bennett is now receiving a level of cooperation which Mr Santilli did not. 30. All these factors, when put into the cocktail, created an explosive condition which finally ignited in August 2001. The respondent submitted that the provisions of s 11A should be applied because the inquiry and the complaints which surfaced in August 2001 were the catalyst which caused the injury. 31. I am required to determine what is the cause of the applicant's psychiatric injury and, in determining this, I am required to apply the dictates of common sense. In hearing all the witness on both sides of the record, it seems to me that the cause was truly the overall nature and conditions of employment from 1995 or before, until the final straw was put in the balance in August 2001. That is the nature and conditions, and all the elements in the cocktail which went to constitute the cause of the applicant's condition. 32. The applicant was affected by his employment well before August 2001. Donna Santilli provided a picture of what was happening at home. She described her husband pacing up and down; ruminating; lacking sleep; away from home on overtime duties for long hours. She was driving to Council Chambers to pick her husband up at 6 o'clock, only to find that she had to return later that night because he needed to work on. She gave evidence that their social life had been destroyed well before August 2001. 33. In examining Exhibit 3, it appears that the applicant was not the only employee who was working under pressure. This exhibit presents a picture of the movements at the Council, particularly on the weekends, and I note there were quite a lot of comings and goings on Sunday (rather than Saturday), but it seemed that several employees were working under stress, not just Santilli, but also the general manager and others. 34. I have concluded that the applicant was totally incapacitated, as a result of his work conditions and his depressive adjustment disorder for 6 months from 28 August 2001 until 28 February 2002. At the conclusion of this period, Santilli was able to do some work. The respondent sought to persuade me that he was able to earn about $55,000 per annum or more from October 2002, that is at about the time he was being examined by Dr Shand. 35. There is no doubt the applicant did experience considerable improvement when he moved back to Armidale in June 2002. Gradually up to that point, he seems to have improved slowly, but then, after his move, he improved much more rapidly. There were several stages of his gradual improvement. After his total incapacity, it seems that from about March to May 2002 he made some progress; from June to October 2002, he made rapid and more dramatic progress; then after October 2002, he continued to make some progress and would have been able to earn at this stage, I think, about $700 a week, or about $36,000 a year. Before October 2002 and from about March 2002, he was able to earn an amount less than $700 per week - an amount which, in the circumstances, I do not need to determine. 36. Exhibits 4 and E agree that the applicant's comparable wage, had he not been injured, would be $1,434 per week. This is in excess of the s 35 maximum as adjusted. 37. I note that the applicant has two dependent children, one born on 13 July 1985 and the other on 27 April 1987. His eldest child, while receiving some support from the applicant, cannot be considered dependent upon him. That child (I think it is a daughter) was described by him as a charity case. His wife became dependent upon the applicant sometime in May, and I have set the date of 31 May 2002, when she left her reasonably paid position in order to look after her husband. 38. I make the following findings and awards: 39. (1.) The applicant sustained injury by way of a psychiatric injury, due to the nature and conditions of his employment from July 1995 to 28 August 2001, particularly for the period from 1998 to the final date of his employment. 40. (2.) He was totally incapacitated for work for 6 months from 28 August 2001, and thereafter partially incapacitated. 41. (3.) The probably weekly earnings but for the injury, had he continued to be employed in the same or some suitable employment, are agreed on the schedules at $1,434 per week, that is, at an amount greater than the statutory maximum. 42. (4.) I assess the sum of $700 per week as the average weekly amount the applicant was able to earn from October 2002 and is presently able to earn in some suitable employment, that is, in the general labour market reasonably accessible to him. 43. I was not asked to apply any s 40 discretion, and even had I been asked, on the evidence I would not have exercised my discretion to lessen the mathematical difference, though for reasons which will appear in a moment, the mathematical difference must be diminished because of the statute. 44. I make an award, pursuant to s 36, from 28 August to 30 September 2001, in the sum of $1,237.80; and from 1 October 2001 to 28 February 2002, in the sum of $1,259.20. That is the first 26 weeks. 45. I further order that the applicant be paid, pursuant to s 40, from 1 March 2002 to 31 March 2002 - $421 per week, (worker and two dependent children); from 1 April 2002 to 31 May 2002 - $428.40 per week (the adjustment amount); and from 1 July 2002 to date - $507.80 per week (a worker with two dependent children and a dependent wife). 46. I note that the difference between the maximum weekly wage rate and $700 is greater than the maximum weekly benefits for two dependent children and a dependent wife. 47. I order the respondent to pay the applicant's medical expenses, and his costs. 48. I direct that counsel's fees should be assessed at $1,200 per day for 4 days, with a conference fee of $200 per day. Mr D J S Jenkins instructed by Commins Hendriks appeared for the applicant Ms W S Strathdee instructed by Hunt & Hunt appeared for the respondent