ALFRED CHARLES ROSE (DECEASED) and COMCARE
[2009] AATA 550
•21 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 550
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700041
GENERAL ADMINISTRATIVE DIVISION ) Re ALFRED CHARLES ROSE (DECEASED) Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)Date21 July 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and determines that, pursuant to the 1971 Act, Mr Rose’s employment by the Commonwealth was a contributing factor to the aggravation and recurrence of his disease of alcoholism.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – disease of alcoholism predated commencement of 1971 Act – failure by review officer to consider aggravation or acceleration of disease under the 1971 Act – original claim encompasses aggravation – remittal considered under s 42D of AAT Act – Tribunal proceeded to determine aggravation as it was open for consideration by the review officer
COMPENSATION – liability – condition of alcoholism – disease – was condition due to nature of employment – 1930 Act test applied – whether occupational disease of employment as a drinks waiter – other significant contributing factors in development of disease – alcoholism not an occupational disease of working in the dining car for ANR – 1971 Act considered – aggravation, acceleration or recurrence – whether alcoholism a disease that can progress – lack of supervision and control of use of alcohol by employees while working – free availability of alcohol to employees during working hours – cultural attitude in the workplace with respect to use of alcohol during working hours – progression of disease – employment played a real part in ongoing aggravation of disease and relapses – decision set aside
Commonwealth Employees’ Compensation Act 1930 ss 4(1), 10(1)
Compensation (Commonwealth Government Employees) Act 1971 ss 5(1), 29(1)
Safety, Rehabilitation and Compensation Act 1988 s 124(1)
Re Rose and Comcare [2003] AATA 1286
Re The Company and Commissioner of Taxation (AAT 12865, 7 May1998)
Commonwealth v Bourne (1960) 104 CLR 32
Connair Pty Ltd v Frederiksen (1979) 25 ALR 155
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Johnston v Commonwealth (1982) 150 CLR 331REASONS FOR DECISION
21 July 2009 Senior Member L Hastwell
Dr E T Eriksen (Member)the history of the claim
1. Alfred Charles Rose was employed by the Australian National Railways (ANR) (then The Commonwealth Railways) from 1953 until 1986. He commenced work as a silver boy/youth conductor in the passenger trains when he was 15 years of age. At the age of 21, he graduated to the role of food waiter and by approximately 1965 he became a drinks steward. He became a senior waiter in charge of the dining car in 1970. He was based in Port Pirie throughout his period of employment.
2. His entire working life with ANR was spent on the passenger trains that travelled between Port Pirie and Kalgoorlie (the Trans Australian) and Port Pirie and Alice Springs (the Ghan).
3. It is common ground that Mr Rose developed the disease of alcoholism. In 1971 he was admitted to the Royal Adelaide Hospital for several days for treatment of the condition of alcoholic liver disease (T7/271). This was the first diagnosis of this condition.
4. Mr Rose left ANR in 1986. He was retired on the basis of invalidity due to his alcoholism. He did not return to any employment after that date.
5. On 14 November 2000, Mr Rose lodged a claim for compensation for “Alcoholism compounded by my work as a drink waiter. Redeployment refused even when recommended by Commonwealth doc” (T35/402-413).
6. In that application, 1979 was given as the date when Mr Rose first sought medical treatment for the injury or noticed the injury.
7. Mr Rose’s claim was made under the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act).
8. Section 124(1) of the 1988 Act provides that compensation is payable to a person for an injury that predated the commencement of that Act (1 December 1988), if compensation would have been payable to that person under the provisions of the Act in force at the date of injury.
9. It has been accepted throughout the lengthy course of Mr Rose’s claim that alcoholism comes within the definition of “disease”.
10. His claim was first rejected by the Commonwealth on the basis that it was not brought within the time prescribed for bringing a claim under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).
11. That decision was reviewed by the Administrative Appeals Tribunal (the AAT) and in a decision delivered on 16 December 2003 (Re Rose and Comcare [2003] AATA 1286), Deputy President Forgie found that Mr Rose was suffering from alcoholism prior to 1 September 1971 and while the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act) was in force and that he was not precluded from making a claim for compensation by virtue of the provisions of the 1930 Act.
12.On 4 October 2006, the respondent (Comcare) rejected Mr Rose’s claim using the provisions of the 1930 Act.
13. In rejecting that decision, the delegate had regard to Deputy President Forgie’s finding that he had been suffering from alcoholism prior to 1 September 1971 and while the 1930 Act was in operation.
14. Mr Rose sought review of that determination and a reviewable decision was made by a review officer on 21 December 2006, which affirmed the decision under review (T54/582–585).
15. In the reviewable decision, the review officer made a finding that his employment had not contributed to that disease and, in particular, the 1930 Act required that the disease must be “due to the nature of the employment in which the employee is engaged”. The review officer formed the view that there was no evidence that employment with ANR ordinarily involves a risk of alcoholism and so, regardless of whether employment may have contributed in some way to the condition of alcoholism, if one used the test of the 1930 Act, liability was not established.
16. Mr Rose sought review of that decision to this Tribunal.
17. Regrettably Mr Rose died before his application for review came before this Tribunal, but the application proceeded.
18. Quite late in the hearing of the matter and after the evidence was complete, it became apparent that Comcare took the view that the Tribunal could only consider whether there was an injury arising under the 1930 Act as the review officer had only considered the matter under the 1930 Act. Counsel for the applicant argued that the Tribunal must also consider whether there had been an aggravation, acceleration or recurrence of the applicant’s disease of alcoholism after 1971. There was debate as to whether the Tribunal could have regard to whether an aggravation, acceleration or recurrence occurred under the 1971 Act. A large portion of the evidence had dealt with the period of Mr Rose’s employment and health post 1971.
19. Different tests apply under the 1930 Act and the 1971 Act to determine whether an employer is responsible for an injury or a disease or an aggravation or acceleration of a disease.
20. Both parties made submissions to the Tribunal as to whether the Tribunal should remit the matter back for the review officer to determine whether there had been an aggravation or acceleration of the disease of alcoholism under the 1971 Act.
21. After further consideration, both parties submitted that the Tribunal did have the jurisdiction to proceed to determine the matter under the 1971 Act, even if the review officer had failed to have regard to the possibility of an aggravation or acceleration under the 1971 Act. Their preference was that the Tribunal deal with the matter.
22. It was evident to the Tribunal that not only had both of the medical experts at the hearing turned their minds to the issue of aggravation, but much of the evidence before the Tribunal related to the post 1971 period and related to the issues of workplace aggravation or acceleration or recurrence of the disease.
23. The Tribunal had regard to the precise terms of the applicant’s claim for compensation dated 14 November 2000. In that claim, he refers to “Alcoholism compounded by my work as a drink waiter”.
24. It is the Tribunal’s view that the application for compensation raises the issue of an aggravation and/or acceleration which could have been considered by the review officer. He omitted to do so.
25. The word “compound” is defined in the Macquarie Dictionary as follows:
“… composed of two or more parts, elements, or ingredients, or involving two or more actions, … to increase by an added factor: …”
26. It is the Tribunal’s view, that by including the word “compounded” in the original application, the application referred also to an aggravation or an acceleration of the disease. The suggestion being that the condition of alcoholism was added to, or aggravated by, the employment.
27. The Tribunal considered the power to remit the matter back to the decision-maker for further consideration of the matter by reference to the 1971 Act. Section 42D of the Administrative Appeals Tribunal Act 1975 provides for such a remittal.
28. That section preserves the right of the applicant to revive his application before this Tribunal if the decision after reconsideration is still not favourable. The reconsidered decision would become the decision under review.
29. The Tribunal notes that in Re The Company and Commissioner of Taxation (AAT 12865, 7 May1998), the Tribunal declined to use the power to remit, saying that it should only be exercised at an early stage in the proceedings where it was shown that the reasons for decision were a sham or the decision-maker had not applied his or her mind to the matter in question.
30. There is no clear guidance in the section itself as to the circumstances in which this discretion should be used.
31. It is the Tribunal’s view that had this matter been at an early stage in the proceedings when the parties realised the deficiency in the review officer’s decision, then the matter should have been remitted.
32. This case had come to the end stage of the proceedings with both parties having expended substantial time, effort and funds on the hearing of the matter when the point was raised. The Tribunal is satisfied that it has the jurisdiction to consider an aggravation under the 1971 Act, even though it was not considered by the review officer. It could have been considered by the review officer had he turned his mind to it as it arises on the face of the claim.
33. This Tribunal is mindful of its obligation to deal with matters expeditiously and this claim has now been in the system for 8 years without a final resolution. A remittal would further delay a resolution of this claim.
relevant legislation
The 1930 Act
34.Section 10(1) of the 1930 Act provides as follows:
“10.(1) Where-
(a)an employee is suffering from a disease and is thereby incapacitated for work; or
(b) the death of an employee is caused by a disease,
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.”
35.Section 4(1) of the 1930 Act defines “disease” in the following terms:
“4.(1) In this Act, unless the contrary intention appears-
…
“disease” includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development, and also includes the aggravation, acceleration or recurrence of a pre-existing disease;
…”
The 1971 Act
36.Section 29(1) of the 1971 Act provides as follows:
“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.”
37.“Disease” is defined in s 5(1) of the 1971 Act in the following terms:
“5. (1) In this Act, unless the contrary intention appears-
…
"disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
…”
38.It is agreed by the parties that for the purposes of the Tribunal’s consideration, alcoholism is a “disease”.
issues
39.The issues for determination by this Tribunal are:
·whether Mr Rose’s disease of alcoholism arose out of his employment with the Commonwealth; or
·whether his disease of alcoholism was aggravated or accelerated or recurred as a result of his employment with the Commonwealth.
the hearing
40. The T documents and supplementary T documents were received into evidence as were a number of other exhibits. The Tribunal heard evidence from three work colleagues of Mr Rose. The Tribunal heard expert evidence with respect to the disease of alcoholism from Professor Jason White, who gave evidence for the applicant and Dr Alan Gijsbers, who gave evidence for Comcare. A lot of historical medical evidence was available to the Tribunal in the T documents and supplementary T documents.
41. Although Mr Rose is deceased, his two statements are contained in the T documents (T35/411 and T40/446) and a transcript of his evidence given to the AAT in 2003 (supra paragraph 11) when Deputy President Forgie heard the preliminary point, was contained in the supplementary T documents (Exhibit A1 at pages 122-204).
42. The history of his employment with ANR is as set out in paragraph 1.
mr rose’s evidence
43. His evidence as contained in the statements and in the transcript of his prior evidence is that he was exposed to working in an environment at ANR where alcohol was readily accessible to him from the time that he was in his early 20s onward. He was at all times employed on passenger trains. He was based in Port Pirie, but his duties involved working on the Ghan and the Trans Australian passenger trains.
44. He graduated to the role of pantry/kitchen hand in 1959 (T35/411) and he graduated to the role of waiter in 1963 (T35/412). He became a senior waiter on 29 November 1970. In a later statement, he said that he spent some years in the role of drinks steward immediately prior to becoming a senior waiter.
45. As a drinks steward/waiter with ANR, it was part of his duty to serve drinks and for many years he was responsible for the ordering, storage and service of alcohol. Once he became the senior waiter in charge of the dining car, his responsibility was to manage all of the alcohol and food service to the dining car. His own account of his duties in that role, as contained in his first statement in support of his claim for compensation, is as follows:
“… My duties were to administer the prompt service of all meals and to also serve tables in the Dining Car during breakfast, lunch and dinner meals, in fact to perform the same amount of work as the waiters.
I was also responsible for supervising all Waiters and Kitchen staff on performance, neatness and especially cleanliness. …”
46. In 1974, he sustained a back injury at work and in his first statement, which was included with his claim (T35/411), he said that because of back pain upon bending he requested to be regressed to a conductor position on many occasions.
47. In this statement in support of his claim for compensation, there is little mention or detail about of the issue of alcohol in the workforce.
48. A further statement of Mr Rose is contained at T40/446-455. This statement is signed by him and dated 31 January 2002. In that statement he reiterates a lot of the history as already set out. He recalls that he began to drink heavily at work after being in the position of waiter/drinks steward for a couple of years. He refers to an in-between step when he went from waiter to drinks steward, before becoming a senior waiter in 1970. He refers to the fact that other staff were drinking some alcohol on the job. He would “stay back and have beers and it just grew on me, creeping up and changing my personality”.
49. In that statement he refers to having a friendly drink with passengers, a lack of management on the train and drinking with the staff. He estimates that a high percentage of the crew (90 percent) were capable of being classified as alcoholics as they commenced drinking before breakfast. He says that he first become aware that he had a problem with alcohol when he was a drinks steward and that as far back as 1971 his employer knew that he had an alcohol problem.
50. Club cars, which served alcohol, were incorporated into these two trains in the early 1960s. In his evidence, at the prior AAT hearing, Mr Rose agreed with the proposition that these club cars were really just a “bar on wheels”.
51. In his evidence at the previous AAT hearing, he said that there was no overall management as such on the trains and that he was his own boss in the club car. He regularly served alcohol to the crew of the train, who would come in “the back door” to buy alcohol.
52. He said that drinking was prevalent amongst the staff. He mainly worked behind the bar, but also provided service of alcohol to the dining car. He also drank while on the train and while on duty. Staff drank both on and off duty.
53. At a later stage in his employment when the rail line was extended through to Adelaide, the train would come through to Adelaide and a bus service, provided by ANR, would take the crew members back to Port Pirie, where they were based.
54. He said that the bus driver routinely stopped almost as soon as the staff embarked on this journey to enable the staff to buy alcohol and that alcohol was then consumed in considerable quantities by many members of staff on the trip back to Port Pirie. He said that during the years when he was being treated on and off for his alcoholism, he would return to work after attempts at rehabilitating himself and would find himself in an environment where alcohol was available and drinking at work was condoned.
55. ANR were aware of the problem of drinking among staff on the trains and when the occasional inspector came on a train, they effectively “turned a blind eye” to the drinking on the trains by staff.
56. In his role as the drinks steward and then senior waiter, he often supplied the inspectors with alcohol.
57. In his second statement, he said that in around 1972 to 1973 (T40/449), he requested a transfer as he wanted to get away from alcohol, even though that meant a demotion to being a second class conductor. That demotion was refused by his boss, Mr Connole, who told him that he was alright in his position and that he did not want to alter wage rates. Mr Rose claimed that on one occasion an assistant supervisor gave him the money to buy an extra four cartons of beer for staff use on the train. He normally took 10 cartons on a trip and this enabled him to buy extra for staff.
58. In this second statement he acknowledges that all staff were aware of the rule book that ANR had and knew that they were not supposed to be drinking, but the rule was not adhered to. Staff drank while on the job and management knew it.
59. In 1976, ANR briefly investigated whether Mr Rose’s position should be altered after his general practitioner in Port Pirie, Dr Geoffrey Stewart, gave him a letter for his employer suggesting that he needed to have his position altered for two months to that of a conductor. As a result, Mr Rose was sent by ANR to see Dr JR Thompson, who recommended that Mr Rose work as a conductor. Despite this, Mr Rose was told by his employer to work as a waiter under supervision as that was the only position available to him.
60. He states that there was really little difference in his duties in this altered position and the problem of proximity to alcohol was not removed. He continued to be exposed to alcohol in the course of his employment. He was under supervision for a relatively short period and then returned to his normal duties.
61. His drinking varied in intensity after 1976. He spent periods as an in-patient at clinics attempting to “dry out” and periods on sick leave because of illness associated with his alcoholism. His evidence at paragraph 20 of his statement of 31 January 2002 (T40) is as follows:
“I lost count of the number of times I asked to get out of the drink car. They knew that I was going to hospital to try and dry out but then I would get back into the work culture and back down the road of drinking I would go. Some of these hospitals I would stay for up to six weeks to get away from it. I used to get that sick, life was a misery in the later years. I used to try my hardest not to drink, but on a blinding hot day you would see one of the other stewards drinking next to you and I would only need one beer and that was it.”
62. He said that the rule about not drinking alcohol while working was not adhered to and management ignored the consumption of alcohol that was occurring amongst the staff on the train.
63. In 1983, he considered suicide after his wife let him for a while as she could no longer tolerate his alcoholic behaviour (T40/460). A clinical record that is available records that he was very depressed at the time.
64. Mr Rose was suspended on 12 September 1986 for alcohol consumption on the previous day while working. Sometime thereafter, he was admitted to Hillcrest Hospital and ANR came to see him and told him that he would be invalided out. Thereafter, he received the invalid pension and Comsuper payments. He never returned to any form of employment.
65. He ceased drinking alcohol in 1986 after he finished his employment with ANR. He then joined Alcoholics Anonymous and apart from a brief period of drinking, which he recalls as being in 1987, he remained sober for the rest of his life. He has eight brothers, none of whom are alcoholics.
66. In his evidence at the 2003 AAT hearing, he elaborated on the detail of the trips that he carried out during the years that he was with ANR. The trip to Kalgoorlie was a three day turnaround and the trip to Alice Springs was four days return. When he was rostered on, he would be on duty for the entire journey. On the Kalgoorlie trip, they usually had a nine hour turnaround in Kalgoorlie. The staff stayed at a hotel in Kalgoorlie.
67. Once he reached the position of senior waiter, he had full responsibility for the bar and also the dining car. He had the keys to the bar and locked it up and was responsible for stocking it. He served both passengers and crew with alcohol as requested.
68. His general practitioner, Dr Stewart, sent him to the Royal Adelaide Hospital in 1971 when he was first diagnosed with liver disease related to his alcoholism. It was Dr Stewart who recommended a change of position to conductor for a period in 1976.
69. Mr Rose did not bring a claim for compensation for alcoholism pre-2000 because he did not appreciate that alcoholism could be a condition that was compensable under workers’ compensation legislation. In addition, it was only when he was involved in a compensation claim relating to the back injury in the 1990s that he had access to medical records, which in his mind, proved to him that the Commonwealth had known for years of his condition while he was still an employee.
70. Mr Rose had no doubt in his mind that ANR were largely responsible for his condition of alcoholism in that they had allowed a situation to continue that caused an aggravation to his condition.
the evidence of mr rose’s work colleagues
71. Mr Neville Maynard, a workmate of Mr Rose, gave evidence to the Tribunal. A witness statement prepared by him was received as Exhibit A4.
72. Mr Maynard met Mr Rose when Mr Maynard was 22 years of age and he knew him throughout his own long working life with ANR. He had a similar career progression as Mr Rose, ultimately spending the last few years in his employment with ANR as a senior waiter.
73. He gave some more detail about the role of a senior waiter. He said that they had a 16-hour day as they were in charge of the dining car, the waiters, the pantry man, the silver boy and the kitchen crew. Their responsibility was to ensure that meals were on time, that the food quality was up to standard and that everything arrived on time. They had to serve three meal sittings a day in the dining car. Once the third sitting was over, the crew had to be fed, everything cleaned and there would be a break before the next day began. Mr Maynard was familiar with both the Port Pirie to Alice Springs and the Port Pirie to Kalgoorlie run.
74. When the train arrived in Kalgoorlie most of the crew would spend a night there, usually in a hotel. Drinking was rife among the staff.
75. He claimed that the work culture at ANR was such that alcohol was readily available. He said that there was no problem in the staff obtaining access to alcohol during working hours and that when ANR did have inspectors there to police the situation on the trains, they sometimes drank with the staff.
76. He said that staff would drink while they were serving tables and he estimated that 80 percent of staff would drink alcohol while on duty. The staff were very busy during sittings, serving about 48 people in 45 minutes, but he claimed that some staff would sip alcohol steadily throughout their shift, drinking out of the sight of the passengers and usually in the pantry.
77. He told the Tribunal that there was stock control of the alcohol on the trains and it all had to be accounted for. A lot of it was consumed by staff. Individuals paid for whatever they drank. The drink steward had to account for all stock usages. When the train arrived at a destination, the drinks steward would hand in a leather satchel of cash to the stationmaster who would sign for it and put in a safe. The drinks steward would then collect that the next morning and would travel back with the cash to Port Pirie. He said that although all forms of alcohol were available, most crew were just beer drinkers.
78. He claimed to have participated in drinking with supervisors/inspectors. He said that inspectors would sometimes drink with the staff. As an example, he could recall being taken by an inspector to meet Sir Hubert Opperman, who was a passenger on the train. He and the inspector then drank beer with Sir Hubert.
79. In the “rule book” it said that alcohol consumption was prohibited. If an inspector did elect to actually take up the issue of drinking with the staff, staff could be demoted for a period of a month or two. People were regressed for misconduct and Mr Maynard was one of them. This occurred when a passenger reported him to the head office in Adelaide and action was taken against him for drinking on duty. This had happened to him twice. Regression usually involved a reduction in pay.
80. His observation of Mr Rose was that he drank with everyone else. He observed that his drinking eventually reached a stage where it did affect his work and he was removed from the train and threatened with dismissal. Once Mr Rose was well enough he would come back to work. He thought that Mr Rose tried hard to rehabilitate himself and he expressed the view that had ANR put Mr Rose in a conductor position, he would have been able to recover. He estimated that he worked with Mr Rose on about one in every three trains that he worked on.
81. He described the job of a conductor. A conductor did not have involvement with the dining car or the kitchen and did not have the same access to alcohol as the staff involved in the dining area and the club car. They sometimes came to have a drink when they finished their shift, but there was not the same peer pressure to drink.
82. Mr Maynard had also caught the buses that took staff from Adelaide back to Port Pirie once the line was extended through to Adelaide in the 1980s. He agreed with Mr Rose’s recollection that as soon as they got on the bus back to Port Pirie the driver would ask them where they wanted to stop to buy alcohol for the trip home.
83. His recall was that not everyone on the bus was drinking, but some would club together and buy a carton and have a few drinks on the way back. Often they would sing and people “were happy” because they had finished work.
84. He acknowledged that he would sometimes have a drink at a hotel in Port Pirie on a social basis with Mr Rose. He described them as both being heavy drinkers. He did not think that Mr Rose handled his alcohol very well.
85. Mr Kent Taylor, also a former workmate of Mr Rose, gave evidence. His witness statement was received as Exhibit A5. He had joined ANR in 1970 and initially worked as a pantry/kitchen man. In his statement he said that if you wanted to get anywhere in ANR, you had to be able to drink and to hold your alcohol as there was a culture of drinking. He confirmed the evidence of Mr Rose and Mr Maynard that alcohol was more accessible and drinking more prevalent with staff involved in the dining car service area of the trains. They all worked very long hours, working 15 to 18 hours a day, and he felt that the alcohol eased the stress and tension of the shifts. There were also regular substantial hold-ups in Kalgoorlie where the staff would drink during the layover.
86. He said that dining car inspectors did not really interfere with their drinking. He also confirmed that drinking was not prevalent in the conducting areas of the train.
87. He had also been a regular passenger on the staff bus from Adelaide back to Port Pirie. He confirmed that frequently a lot of the staff returning to Port Pirie would drink alcohol on the bus, and the driver would stop to enable them to purchase alcohol before they left Adelaide.
88. In his evidence to the Tribunal, he estimated that 50 to 70 percent of the kitchen and waiting staff drank alcohol on a work trip on the train.
89. Before becoming a dining car inspector, inspectors had often previously been senior conductors or managed the train. Not too many people were reported for drinking because often the dining car inspectors had been drinkers themselves and turned a blind eye to staff drinking. Sometimes dining car staff would drink with management staff.
90. With respect to the bus trips from Adelaide back to Port Pirie, he thought that 50 to 60 percent of the people on the bus would drink on the way back. Some would drink very moderately, and some would drink more. He thought that Mr Rose was sober on most of the trips that he had done with Mr Rose because he was trying to remain sober at the time.
91. He could recall that Mr Rose had a brother in Kalgoorlie that he would catch up with when they had a layover in Kalgoorlie. He referred to the effects of Mr Rose catching up with his brother as “undoing him”. Mr Rose used to drink a lot with his brother.
92. He did not believe that the consumption of alcohol by staff got in the way of the efficient functioning of the trains. He had only ever seen Mr Rose drinking beer. He had seen Mr Rose have too much to drink on “the odd occasion”.
93. Another work colleague of Mr Rose, Mr Leith Cole, also gave evidence. His witness statement was received as Exhibit A6.
94. He confirmed what he referred to as “the prevalent drinking environment that was part of almost every trip” on ANR. He said that drinking by staff was known to management and at times participated in and encouraged by management. Nevertheless, at other times inspectors would traverse the train specifically to catch drinkers and, if apprehended, they were subject to an inquiry. This could result in regression to a lesser position, a fine or dismissal.
95. He did not do many trips with Mr Rose and could not say that he had seen him drinking, but he was aware that staff would drink in the dining part of the train.
expert medical evidence
96. Professor Jason White gave evidence as an expert for the applicant. He is the Professor of Pharmacology at the University of Adelaide, with qualifications in psychology and pharmacology. He is also a director of Drug and Alcohol Services Unit SA.
97. Professor White had also prepared a report dated 21 May 2008 with respect to Mr Rose, which was received as Exhibit A2. For the purposes of that report, he had read the witness statement and the evidence of Mr Rose given in the 2003 AAT hearing. He had read the witness statements of Mr Rose’s colleagues, Mr Cole and Mr Maynard. He had considered the material in the T documents.
98. His main focus was on the 1930 Act and the test set out in s 10(1) of that Act, which focuses on occupational diseases. His report and his evidence to a degree focused on whether alcoholism could be classified as an “occupational disease” of the hospitality industry. For the purposes of his report and his evidence, he took the view that employment as a drinks steward/senior waiter would be considered to be employed in the hospitality industry.
99. He expressed the view in his report, and reiterated this in his evidence to the Tribunal, that alcoholism is an occupational hazard of working in the hospitality industry. He considered that the workplace culture of drinking, to which Mr Rose and his colleagues report that they were exposed, was not only a possible precipitant of Mr Rose’s alcoholism, but was also an aggravating factor that worsened his condition.
100. In giving his evidence and in preparing his report, he had made certain assumptions in reaching his conclusion.
101. He had assumed that there was a “very strong workplace culture of drinking” based on the statements that he had read. He had also assumed that alcohol was freely available in the areas where Mr Rose was employed and he had drawn the conclusion that “management appeared to actively encourage drinking in the work environment”.
102. Based on this information, he formed the view that not only could Mr Rose’s employment have precipitated his alcoholism, but it would also have aggravated or accelerated an existing condition.
103. He gave evidence as to the affects of alcohol on the brain, the way in which it changes the brain, making the brain crave for alcohol and regard drinking as a high priority activity. He said for an alcoholic to recover, they need to be removed from an environment where alcohol is available for long periods of time. The fact that after each period that he attempted to rehabilitate himself, Mr Rose returned to an environment where alcohol was freely used and where management did not disapprove of the drinking, meant that his condition would be aggravated or accelerated once more.
104. He referred the Tribunal to a study done by the Australian National Research Centre in 2006 into the links between alcohol and work (the PIDD Report)(Exhibit A3) . He commented generally on how the management of alcohol in the workforce had changed over the years and that 30 or 40 years ago, although some companies may have had informal policies about managing alcohol in the workplace, many companies had no policy at all. There has been a gradual movement over the years towards a greater understanding of the hazards of alcohol in the workplace and towards greater formal restriction.
105. The PIDD Report highlights that the workplace is a cultural environment within the large community “that can either support or inhibit the development of problem drinking among workers”.
106. In his report, he noted that by the age of 34, Mr Rose was receiving treatment for alcohol related problems and the development of his alcoholism appeared to be rapid. He expressed the view that Mr Rose’s social/work environment was such that heavy drinking was at least accepted and possibly regarded as normal. He commented:
“… Without such acceptance drinking cannot normally progress to heavy drinking and alcoholism. I have no information on Mr Rose’s social environment at Port Pire during his employment, but it is clear that his work environment was one in which heavy drinking was actively encouraged. Undoubtedly, this contributed to his development of alcoholism and significantly hindered his recovery.”
107. He was asked to comment as to whether redeployment as a conductor as requested by Mr Rose may have “decelerated and alleviated the progress of Mr Rose’s alcoholism”.
108. Professor White said that redeployment would have significantly reduced his exposure to alcohol (Exhibit A2/9). He considered that although Mr Rose would have still been exposed to some social pressure to drink, for example, on the buses returning to Port Pirie, moving him away from a job involving alcohol would have resulted in a marked reduction in exposure to alcohol and would have been significant in terms of his health.
109. He referred to Mr Rose’s numerous attempts to deal with his alcoholism which he thought indicated a high degree of motivation to resolve his problem. He commented:
“… His work environment effectively sabotaged his recovery attempts, but had he been less exposed to alcohol through redeployment as a conductor then his attempt to recover may have been successful.”
110. Professor White said that the main managerial strategy that could have assisted Mr Rose would have been the active enforcement of regulations against drinking during paid work time. It appears that this was intermittently enforced at the best.
111. Professor White was asked to comment on the fact that Mr Rose continued to use tranquilising medication for many years both before and after becoming alcohol free. He was asked to comment as to whether his use of alcohol may have been self-medication for a pre-existing nervous disorder. He said that was possible and that it was very difficult to differentiate between whether the anxiety and depression from which Mr Rose appeared to suffer from time to time pre-dated alcoholic consumption, or whether anxiety and depression was the consequence of long-term heavy alcohol consumption.
112. His response was that it is often impossible to ascertain which comes first as a heavy drinker cannot always provide a good antecedent history. He did not think a great deal rested on Mr Rose’s ongoing use of tranquillising and sleep medication because he said that these drugs are often used to treat alcohol withdrawal and to suppress the cravings and by the time a person has recovered from their alcoholism, they may have become dependent on sedative drugs.
113. He was asked to specifically comment about the incident that occurred in 1976 when Mr Rose was demoted from senior waiter to “waiter under supervision” for a period of three months. This followed an incident when Mr Rose was left behind in Kalgoorlie for medical treatment. Professor White was of the view that that episode may have occurred as a result of him using medication to assist him with withdrawal of alcohol which resulted in him having an altercation with a passenger. The notes available with respect to that incident suggests that he was perceived by his supervisors as having some sort of “nervous disorder at the time”. He made the point that Mr Rose would probably have been reluctant to admit to his employer that he had an alcohol problem because of the shame associated with that issue and the fear of being dismissed and that it was easier to call the problem “anxiety” and ask to be transferred on that basis. To admit that he was an alcoholic may have had more severe consequences for him in terms of his employment.
114. He was asked to comment as to whether Mr Rose’s alcoholism arose for other reasons, for example, the death of his father in the 1960s. He responded by saying:
“If it arose for other reasons, … then being in an environment where alcohol was promoted, would certainly have, in a sense, encouraged him to continue along that road. Otherwise, it is possible that he may have ceased after a single long binge of drinking …” [Transcript, 2 March 2009, page 40]
115. Professor White thought that the fact that Mr Rose may have first had the experience of drinking in hotels with friends tells very little about the real role of alcohol in Mr Rose’s life. He said that a vast number of people start their drinking careers at the pub and so that fact would not be really remarkable in one way or the other.
116. He believed that the conditions of Mr Rose’s employment exposed him to a very significant risk of alcoholism. He expressed the view that the conditions of employment at ANR have precipitated the alcoholism and certainly aggravated Mr Rose’s alcoholism.
117. In his report (Exhibit A2) Professor White’s conclusion was that workplace culture plays a very significant factor in determining the alcohol consumption of employees and where drinking is accepted or even encouraged, workers are:
“… more likely to engage in drinking in general, and to show signs of drinking related problems, compared to work environments with no drinking culture. The culture may also influence the degree to which alcohol is used in response to work related stress and alienation. Where such problems exist and there is a workplace culture of drinking workers may engage in drinking after work or even in working hours as a response to these problems.
The workplace can facilitate the development of alcoholism, particularly in a susceptible individual. It can definitely aggravate an existing condition of alcoholism where workers are frequently exposed to alcohol and where there is a workplace culture of drinking that makes it difficult for a person with alcoholism to resist the social pressure associated with such a culture. …”
118. Dr Alan Gisjbers gave evidence for Comcare. He is an expert in the field of addictions, including alcohol addiction. He had prepared two reports dated 4 September 2008 (Exhibit R2) and 9 June 2004 (T50/543) at the request of Comcare. Dr Gisjbers is a specialist physician in addiction medicine and currently head of the addiction medicine service at the Royal Melbourne Hospital.
119. When asked to write his first report, he was provided with the prior medical material in the T documents and he prepared a chronology to assist him in better piecing together the history of Mr Rose’s alcoholism. He noted in his first report that Mr Rose had an unhappy childhood and left home early to get away from family pressures. His chronology was extremely helpful and is contained in the T documents (T50/547-557).
120. He noted the regular references in medical notes to Mr Rose’s unhappy domestic situation and Dr Gisjbers formed the view that the notes indicated that a major precipitant of Mr Rose’s drinking was his father’s death in the late 1960s.
121. Nevertheless, he accepted that his work, his responsibilities at work and his work colleagues were a source of relapse. He described Mr Rose as a “crowd pleaser” and one who would not stand up against prevailing culture. He sees the workplace as a “major threat” to Mr Rose’s sobriety.
122. He considered that Mr Rose’s workplace was a “key precipitant” to his relapsing, although he would not accept that his workplace was the primary cause or the only cause of his alcoholism. He also notes that there was evidence that management expressed concern about Mr Rose’s health in 1976, 1978 and 1980, but that “effective intervention only occurred in January 1985”.
123. He did note that during Mr Rose’s formative years, ANR would have “been a greater shaper than his home life, as he would have been away a lot at work on the trains” (T50/546).
124. In his second report, he specifically disagrees with Professor White as to the position that Mr Rose’s workplace played in the causation of his condition of alcoholism. He nevertheless acknowledged that the workplace may have been a contributing factor.
125. Based on all the information that was provided to him, he commented in his report that the contemporaneous accounts of what was going on with Mr Rose were a lot more complex than the simple claim that the workplace was a major cause of drinking. He refers to the relevance of Mr Rose’s personal relationships, his social life, his family life and his sporting life. He points to the lack of clear narrative and developmental history that would enable one to “piece the different causative factors together”.
126. He expressed the view that Mr Rose’s drinking should be seen in the context of a much broader picture of a nervous person who did not cope well with his father’s death, nor did he cope well with responsibilities, stress and peer pressure.
127. He noted that outpatient notes in November 1978 suggest that Mr Rose’s drinking started with friends at the pub when he was 18 years of age.
128. He pointed out that there were occasions when Mr Rose’s workmates were supposedly so concerned about his difficult behaviour that they indicated that they would not work with him. He comments “this hardly consists of a toxic workplace environment”.
129. In an assessment done by the Alcohol and Drug Addicts Treatment Board in 1980, Mr Rose scored no adverse points out of a potential 13 when, upon admission, they assessed his vocational health and there were reports that he rarely misses work. However, at the same time serious conflict with his wife and with his children is noted.
130. He was critical of Professor White’s uncritical acceptance of there being a 90 percent alcoholism rate in Mr Rose’s workplace. He does not accept that as being an accurate figure.
131. He notes the lack of access to the testimony of management at the time.
132. He comments that he frequently comes across people who drink more rather than less when they stop working.
133. Mr Rose started to drink at a very young age and Dr Gisjbers said that if people have a significant propensity towards alcoholism, then from the very start they can drink very heavily. In a Hillcrest Hospital record of consultation (T6/238), it is reported that Mr Rose first started drinking at 16 years of age and drank socially until the age of 28.
134. Dr Gisjbers surmised that Mr Rose was a person who possibly suffered from what he referred to as hyperhedonia, or “emotional deregulation” and that alcohol was a very potent drug which was very useful in suppressing the conflict of emotions which he felt. He found his relapse in the context of his football club’s victory in 1978 significant as this was quite separate from the workplace. He surmised that Mr Rose had underlying personality traits that were a factor in his alcoholism.
135. He said that an important part of treating alcoholics is to make them take responsibility rather than blame others or put what he referred to as “the locus of control outside of themselves”. He was critical of what he perceived to be Mr Rose’s need to blame his employer for his alcoholism.
136. The persistence of the drug and alcohol counsellors at Port Pirie gradually moved Mr Rose forward and yet Dr Gisjbers remarked that he could not find any evidence of his counsellors telling Mr Rose that he should stop or change his work to help his recovery. His view was that if work was a major factor in the relapse, then that should have been picked up by the clinicians and addressed. The fact that it was not mentioned indicated to Dr Gisjbers that at that time, whatever later perceptions, “the workplace wasn’t as important a factor as it seems to have become subsequently and in retrospect”. In this respect, he disagreed with Professor White.
137. He said that alcoholism is a complex disease and many factors impinged on the disposition to drug use which then leads to what he referred to as a “non adaptive state”. He provided a diagram to the Tribunal (Exhibit R3) referred to as the WHO Model of Drug Use to assist the Tribunal in understanding the multiple causative factors that can work towards a person developing alcoholism or continuing as an alcoholic. He believed that many individual factors as set out on page 2 of his report (Exhibit R2) were causative in Mr Rose’s alcoholism.
138. He thought that the fact that Mr Rose used tranquillising medication for many years of his adult life fitted in with his theory that Mr Rose had significant other emotional problems.
139. He agreed, in his evidence, that if it was correct that two in every three people on the bus drank on the way back to Port Pirie, then it would be almost impossible for Mr Rose to resist the temptation to drink.
140. When asked about the event in 1976 in Kalgoorlie that precipitated Mr Rose’s request to be allotted to conductor duties, Dr Gisjbers’ hypothesised that Mr Rose was probably in alcohol withdrawal, having been on a bender from days earlier and that his desire to move to a conductor position was to avoid confrontation with difficult passengers. Conductors worked alone, being responsible for their carriage and having minimal interaction with passengers and the rest of the work crew.
141. Dr Gisjbers refused to be drawn about the discharge note of 1978 contained in the notes (T16/355) which commented “prognosis fair, but at risk in employment” and he thought that was “entirely ambiguous”.
142. Overall, Dr Gisjbers’ position was that there were multiple causes for Mr Rose’s alcoholism. Although the workplace may have been a contributing factor, there was also the reaction to his father’s death, family, background, personal relationships and his underlying genetic disposition and a nervous, anxiety disorder that may have been a long-term condition and may have been the reasons, for example, for him requiring a change of position to a conductor in 1976.
143. He considered it wrong to interpret the available medical evidence as supporting the thesis that the workplace was the major contributor to his alcoholism. He also drew from what was not said in various parts of the medical history. He considered omissions significant. For example, in Dr Stewart’s letter of 1976 in which he recommended a two month alteration in duties to that of a conductor, there is no mention at all of alcoholism and equally after the ANR doctor had seen Mr Rose, there was still no mention of alcoholism. He found it notable that within three months, Mr Rose wanted to return to his former duties, saying that he was fit to do them.
other available evidence
144. The Tribunal had available to it a lot of Mr Rose’s prior medical history gleaned from the medical records of a number of medical centres where he had been treated, including the Pirie Medical Centre, the Warrinilla Clinic, Hillcrest Hospital and the Royal Adelaide Hospital. The medical notes provided some corroboration of Mr Rose’s health problems and his dependence on alcohol. They also charted a history of other health problems and personal difficulties over the years.
145. Dr Gisjbers’ chronology titled “Chronological History of Alf Rose’s Alcohol Dependence and its Precipitants” presents a fair summary of a history from the medical notes.
146. In 1976, Dr Stewart, wrote a letter for ANR recommending that Mr Rose be relieved of the responsibility of senior waiter and have the position of conductor for approximately two months (T8/346). This letter followed immediately upon the incident involving Mr Rose that is reported on in 30 January 1976 and which is documented at T9/347. There is no reference to alcohol as being the reasons for the suggestion of a conductor position by Dr Stewart and no reason for the proposed change in position is given.
147. A document signed by the supervisor of the dining and sleeping car service recounts an offending incident which occurred on 20 January 1976 where due to “some form of illness” Mr Rose had supposedly become violent and had to be assisted by several staff to get off the train at Kalgoorlie. As a result of this inappropriate behaviour, he was asked to attend for interview a week after the alleged incident. The supervising conductor, who conducted the interview, reported as follows (T9/347):
“… I then immediately noticed he appeared ill and in a highly nervous state; he later became so emotional as to cause an interruption to our conversation for a few minutes to allow him to regain composure.
In view of his condition and appearance which indicated some previous indulgence of intoxicants or drugs, I asked if he had indulged in same but this he emphatically denied, and apart from stating that he had all sorts of worries, he informed me that he had not partaken of any form of tablets since the previous Monday afternoon …”
148. In the course of the interview Mr Rose denied consuming any alcohol, but admitted to taking some tablets which he claimed the doctor prescribed for his nervous condition. He told the conductor that he was not sure how many he had taken. At that interview, Mr Rose requested that he be allotted conducting duties in economy class for a couple of months “to relieve the tension”.
149.It is notable that the supervising conductor commented:
“ … I informed Rose that apart from him not having attended a Doctor during his very recent illness or previously for his alleged nervous disorder I did not consider that the responsibilities of Senior Waiter would be any greater than that of a Second Class Conductor who had full time responsibilities for 32 passengers. Rose then stated his intention of visiting his Doctor. …”
150.At the end of his report he comments:
“Rose has suffered stomach disorders for quite some years, and to my knowledge has had three serious operations for stomach ulcers, or similar, following which he has had to observe a strict diet, including the total abstinence from alcohol, but as he is known to freely indulge in the latter it is probable that a combination of alcohol and other medication may be responsible for his somewhat, strange, nervous condition.”
151. Two days later, Mr Rose saw Dr Stewart and obtained the letter proposing an alteration in his position (supra paragraph 146). On Mr Rose’s account, this was because he wanted to try to get away from the alcohol and wanted to get the job of conductor. ANR then made an appointment for Mr Rose to see Dr Thompson at the Port Augusta Medical Clinic.
152. Dr Thompson’s report dated 9 February 1976 (T11/350) found that Mr Rose was not fit for his present duties. He considered that he was suffering from a functional nervous disorder and a duodenal ulcer that had been treated. He referred to him suffering from “private troubles”. He recommended that he be placed on other duties and in particular as a conductor under supervision. The report indicates that the physical examination was “normal” and Dr Thompson’s prognosis was that “health will improve”.
153. As a result of this, Mr Rose was employed as a senior waiter under supervision for a short period and not as a conductor. By April of that year, Mr Rose had decided that although he was happy working under supervision, he was ready to return to his work as a senior waiter and “he would do his utmost to perform his duties in the manner required” (T14/353). He resumed his work as a senior waiter.
154. In 1978 he had in-patient treatment at the Ellura Clinic for his alcoholism and a Discharge Note (T16/355) indicates “prognosis fair but at risk in employment – needs further investigation for liver pathology”.
155. In November 1980, the supervisor of the dining and sleeping car service wrote to the operations manager at Port Augusta (T17/356) making the following comment:
“There are frequent occasions when Mr Rose has booked off sick on route, and whilst proof cannot be produced, it is almost certain the cause is excessive alcohol consumption or the after-affects of it. There is every reason to believe that an all-night session at Kalgoorlie was the reason for this latest failure to remain on duty.”
156. The same letter reports that members of the crew were reluctant to be rostered on the same crew as Mr Rose because of his failure to properly carry out his duties and again it is acknowledged that his drinking habits exacerbated his problem. As a result of this, there was a consideration of Mr Rose’s position by both the acting superintendant of the northern region and the operations manager of the northern region. The reports are contained at T18/357 and T19/359. The conclusion of the operations manager contained in a report of 9 December 1980 is as follows:
“Until such time as there is a complaint by crew members that Mr Rose is not fulfilling his duties and they are not prepared to work with him little can be done to arrest the situation.
It is requested that Inspectorial Staff closely watch the activities of Mr Rose whilst they are travelling on trains and bring under notice any instances whereby they consider he is failing to satisfactorily perform his duties.”
157. Mr Rose was admitted to the Ellura Clinic in 1981 in a further attempt to withdraw from alcohol.
158. In 1983, Mr Rose was diagnosed with alcoholic hepatitis. His wife had left him five weeks earlier when he started an alcoholic binge. A Discharge Letter at T21/361 refers to a history of heavy drinking for 25 years. When he was discharged from Birralee, the diagnosis on 14 July 1983 was “Alcoholic Dependence Syndrome and Alcoholic Liver Cirrhosis”. There is a reference to workmates complaining on several occasions about him “sleeping it off on the job”.
159. In 1985, ANR made contact with the Warrinilla Clinic asking for advice on how to manage Mr Rose as it appears he had reached the point of either being demoted or losing his job because of his unsatisfactory work performance. He was then referred by ANR to attend the drug and alcohol service and there is a note on 5 February 1985 indicating “If he returns to drinking, he will be dismissed” (T5/77).
160. In 1986, he was charged with having liquor in his possession whilst rostered to work on a train ex-Kalgoorlie and with consuming liquor whilst on duty. He was booked off duty and it would appear that incident then lead to his compulsory retirement. In his response to that charge (T24/365) he acknowledged that whilst on his day off in Kalgoorlie he started drinking and this caused him to continue the next day on duty. He commented that he did not know why he had started drinking again after having been sober for four months, including undergoing a six-week program at Hillcrest Hospital.
161. At a medical examination carried out on 9 October 1986, which was organised by ANR, the medical officer reports that Mr Rose is suffering from chronic alcoholism and refers to a 20 year history of alcoholism and “His job as drink waiter compounded his alcoholism. Attended Alcohol Rehabilitation programmes on 3 previous occasions since 1980”. He further commented that his loss of employment as a drink waiter may be a positive factor, but the likelihood of relapse remained high. He was considered unfit for further service.
162. In a second report dated 22 October 1986, the medical officer referred to a 20 year history of excessive intake of alcohol aggravated by his job as a drinks waiter. This doctor was employed by the occupational health section of ANR.
163. Mr Rose had one further in patient admission for alcoholism in March 1987 when he had become intoxicated whilst in Adelaide.
164. Mr Rose was a married man with three children.
165. The Tribunal also had medical notes which post-dated Mr Rose’s service with ANR. He continued to take tranquillising and sleep medication on a regular basis.
166. In 1992 and 1993, he was treated for panic attacks and an episode of major depression. He continued to take anti-depressant medication for a number of years (medical records of the Port Pirie Medical Centre T4/56).
167. It is evident from some of the notes that there was a lot of tension and conflict between Mr and Mrs Rose over the years, partly related to his drinking and partly related to other issues such as his failure to acknowledge her contribution to their domestic life. His drinking clearly features as a significant cause of conflict between them. The notes indicate that Mr Rose had periods of drinking very heavily at home, which caused distress and concern to his family.
168. Both Mr Rose’s parents died of cancer. He suffered from depression after his father’s death and this precipitated some heavy drinking for a number of years.
discussion of the evidence
169. The Tribunal accepts the evidence of the lay witnesses, save that Mr Rose himself has exaggerated the degree of alcoholism among the ANR staff and has focused heavily on the workplace as the source of his problems without acknowledging the other factors that played a role in his life over the years. This is probably unconscious and inevitable when bringing a claim after so many years. Mr Rose also became a committed member of Alcoholics Anonymous and no doubt in hindsight blames his employer for the extent to which his constant exposure to alcohol in a working environment, in his mind, caused relapses as he tried to battle with his addiction.
170. Mr Rose claims that all his attempts to be changed to a conductor position arose from his desire to avoid alcohol whereas in his own earlier evidence he attributes his earlier requests to change position to his back problems when serving in the dining car which arose from his back injury.
171. He fails to mention at all his excessive drinking with his brother at Kalgoorlie and the role that his own personal problems played in his addiction problems.
172. Nevertheless, to a degree, the record speaks for itself and there is ample corroborative evidence as to his alcoholism, his drinking on the trains, reports of staff drinking while on duty and his attempts to dry out and lead a normal life.
173. The workmates that gave evidence for Mr Rose were straightforward in their presentation and the Tribunal accepts their evidence about the availability of alcohol to staff during working hours, about ANR’s failure to properly manage the issue of workplace drinking on the trains and about the trouble that Mr Rose progressively got himself into through his drinking.
174. The Tribunal accepts the evidence that inspectors would, on occasions, often drink with the crew and that the crew worked long hours in a stressful and, at times, very hot environment. Drinking on the job and after the shift had finished became part of the work place culture at ANR until at least the 1980s when it appears ANR management began to develop a better awareness of the issue.
175. The two expert witnesses were both highly qualified and good witnesses and agreed on many issues. Professor White made some assumptions about the workplace that did not appear to be warranted on the evidence and in particular an assumption that management actively encouraged drinking. He was less critical in his approach to the historical medical evidence and laid a heavy emphasis on the notion of workplace culture being a major precipitant to Mr Rose’s alcohol consumption.
176. Dr Gisjbers was more critical in his approach and addressed himself to the detail of Mr Rose’s life in an impressively thorough way. He prepared the chronology referred to and tried to put together the jigsaw of Mr Rose’s decline in a very good forensic examination of the available material.
177. Dr Gisjbers agreed that Mr Rose’s workplace was a contributor to his alcoholic decline and his relapses, even if it was not the initial or even a major precipitant of his alcoholism and his relapses. He would not accept that his development of the disease of alcoholism was due to the nature of Mr Rose’s employment.
178. Dr Gisjbers focused on the notion that his work was not a major contributor, but agreed that is was one of many contributors.
179. Having considered all the available evidence, the Tribunal makes the following findings of fact, on the balance of probabilities and in addition to the matters set out in paragraphs 1 to 4 hereof.
finding of facts
180. Mr Rose commenced to drink alcohol socially at the age of 16-18 years. He did not have access to alcohol in the course of his employment at that time. It is not possible to pinpoint any particular factors that led to his alcoholism. He possibly had a genetic predisposition, combined with environmental and social factors which lead to the development of the disease.
181. Alcohol first became available for service on passenger trains running between Port Pirie and Alice Springs and Port Pirie and Kalgoorlie in approximately 1963. Mr Rose graduated to the role of waiter in 1963 and at some stage between then and before 1970, he took on the role of drinks steward.
182. His increasingly heavy drinking began from the mid to late 1960s onwards.
183.
Mr Rose did not have a happy childhood. His mother was an alcoholic and he did not have a good relationship with his father. He left home at 14½ years of age.
His father died in the 1960s as a result of cancer which probably precipitated an increase in his drinking.
184. Mr Rose had unresolved issues related to his father’s death for many years.
185. Mr Rose suffered from an underlying nervous or anxiety disorder for which he took tranquillising medication for many years and from quite a young age.
186. By 1971, he had developed the disease of alcoholism.
187. In 1974, he sustained a back injury at work. He requested to be regressed to a conductor position because of pain in his back upon bending to serve at dining tables. This request was not granted.
188. From the time that club cars were introduced to the passenger trains in 1963, he had access to alcohol during his working hours. He would also drink heavily on occasions during train layovers at Kalgoorlie, where he had a brother with whom he would drink.
189. He worked long shifts on the trains. A shift could be 16 or 18 hours. The work was stressful and once he graduated to the position of senior waiter he held a lot of responsibility in his job.
190. In his position as drinks steward/senior waiter, there were occasions where he would drink alcohol with passengers during work hours. He also drank alcohol with staff both during and after shifts ended.
191. There was a rule prohibiting the use of alcohol by staff during working hours. This was only intermittently enforced by management of ANR.
192. There was no permanent inspector or supervisor on trains, but rather intermittent, random supervision by inspectors who were often former senior staff themselves and so they often socialised with the staff on the trains and drank with them as they has come from the same workplace culture.
193. Staff on the passenger trains could regularly obtain alcohol during working hours if they wanted a drink and it appears that this was considered acceptable behaviour by fellow staff.
194. Some inspectors did enforce the rules, but it appears that this was the exception rather than the rule in the 1970s.
195. Staff and Mr Rose often drank to excess in Kalgoorlie on layovers in their own time.
196. It was neither abnormal or unacceptable for staff to purchase and drink alcohol during working hours on the train.
197. Dining car staff were required to be extremely efficient in their service of food, serving large numbers of people in a short space of time for three sittings on each day. They had long working days of approximately 16 hours. Drinking during working hours was reasonably widespread among staff and excessive on occasions.
198. Conductors had a different role to dining car staff and were not in the same proximity to alcohol as dining car staff.
199. Excessive drinking occurred during layovers in Kalgoorlie.
200. There was an incident in Kalgoorlie in 1976 where Mr Rose had an altercation with a passenger. As a result of that altercation, he requested, and his doctor recommended, that he be moved to a conductor position for two months, but that was refused. He did not say anything to his supervisor about alcohol being involved in that request to be moved.
201. After this 1976 incident, an ANR doctor supported the move to a conductor position, but considered Mr Rose’s problems to be emotional. He found him to be in a normal physical condition and his prognosis for his future was good.
202. From approximately 1978 onwards, Mr Rose showed a motivation to try to beat his alcoholism, but without success. He had a number of inpatient admissions and commenced counselling, but he would then relapse once more.
203. Mr Rose’s relapses were not all in the context of his employment, an example being his relapse in 1979 when his football team won a premiership. At that stage he had managed to remain alcohol free for ten months.
204. By 1980, ANR was very aware of Mr Rose’s difficulties with alcohol and there was concern by ANR about his drinking. Colleagues began to complain about his poor work performance and his workmates were refusing to work with him on the trains unless he did something about his drinking problem. Nevertheless, ANR did nothing proactive about the situation and took the view that unless he was effectively caught red handed or colleagues filed complaints, there was little they could do.
205. In 1983, he had another hospital admission in an attempt to withdraw from alcohol. His disease had progressed to a point where he was diagnosed with alcoholic liver syndrome and alcoholic liver cirrhosis.
206. His alcoholism became more obvious to staff in the 1980s, with more reports of him drinking on the train while working and being intoxicated when required to present for work.
207. It was around 1984 that the railway line was built from Alice Springs to Adelaide. Thereafter, staff came through on the trains to Adelaide and were then transported by bus back to Port Pirie.
208. Alcohol was consumed by staff on the bus back to Port Pirie. This was routine and accepted and management was aware of it. Mr Rose at that time was trying to remain sober. He would travel back to Port Pirie on these buses.
209. ANR at no stage encouraged staff to drink on the job, but rather chose to ignore the fact that staff were drinking during working hours, save for the occasions when they would decide to intermittently police the rule against drinking alcohol while working.
210. Mr Rose was able to maintain periods of sobriety, but would then have significant relapses often in the context of work and peer pressure to participate in drinking.
211. He used prescribed tranquillising drugs for many years to relax. Alcohol also produced a relaxant effect.
212. Rosters on trains varied. On some trains, there was more peer group pressure to drink than others, depending on the individuals who were rostered on with him. Mr Rose had a susceptibility to peer influence and would find it very difficult to resist the pressure to drink on the train.
213. Mr Rose increasingly drank heavily at home, as well as at work. His drinking problem appears to have worsened from the mid 1970s onwards.
214. Exposure to an environment where alcohol was freely available and the consumption of alcohol during working hours undoubtedly often created an irresistible temptation to drink for Mr Rose.
consideration and application of the law
Consideration of the matter under the 1930 Act
215. As Mr Rose’s alcoholism developed prior to 1971 and the commencement of the 1971 Act, the Tribunal must first consider whether it is compensable under the provisions of the 1930 Act.
216. Section 10(1) of the 1930 Act allows for compensation for “a disease” provided that the disease is due to the nature of the employment in which the employee was engaged by the Commonwealth.
217. The 1930 Act in its original form referred to a schedule of occupational diseases and although the compensation provision was later widened with the addition of sub-s (1) to s 10, the interpretation of the provision in subsequent cases still takes a restrictive approach to interpretation of that provision. That provision does not use the term “caused by employment” or “contracted during employment”, but refers to the concept of an injury or disease arising out of “the nature of the employment”. This is quite a different and more restrictive concept than the concept used under the later 1971 Act.
218. In the matter of Commonwealth v Bourne (1960) 104 CLR 32, Dixon CJ, in considering s 10(1) of the 1930 Act, commented as follows:
“… I do not think the expression in s.10(1) ‘due to the nature of the employment in which the employee is engaged’, covers an employment which has no particular tendency to give rise to a disease, contribute or conduce to it or accelerate it and no incident, adjunct or quality of which involves those employed therein in any particular liability to the contraction of a disease or to the aggravation or acceleration of its course. …”
219. He went on to say that “… it does seem to refer to a connexion between the ‘disease’ in the defined sense and the description of employment in virtue of its tendencies, incidents or characteristics. …”
220. Fullagar J, in the same case, commented:
“… It was not shown, nor, I should imagine, could it have been shown, that a characteristic or distinctive feature of employment as a taxation investigating officer was a tendency to cause arterial sclerosis or myocardial degeneration, or to aggravate or accelerate an existing condition of arterial sclerosis or myocardial degeneration. …”
221. The Tribunal also had regard to the case of Connair Pty Ltd v Frederiksen (1979) 25 ALR 155 where the High Court considered a similar provision of The Workman’s Compensation Ordinance 1949 of the Northern Territory, which gave a right of compensation to an incapacitated workman who had suffered a disease which he alleged was due to the “nature of the employment” in which he was engaged. Disease was defined to include an “aggravation, acceleration or recurrence of a pre-existing disease”.
222. In that case, the worker was employed as a pilot with a small commercial airline and he developed an incapacity for work as a result of a fear or phobia about flying.
223. In the case of Connair, the High Court was prepared to find that his illness was due to the nature of his employment. The Court accepted that the evidence showed that he had a personality which pre-disposed him to an anxiety state. They considered the stress incidental to the work of a pilot flying in a remote area in a small aircraft. Mason J commented as follows at page 172:
“However, to my mind the witness said enough to demonstrate that employment as a pilot in a commercial or small commercial airline involved some special risk of producing in a person with an obsessive compulsive personality a phobia against flying. …
I do not think that the tendency has to be exclusive to employment of the kind in question. It is enough if the tendency to expose the employee to the risk of contracting, aggravating or accelerating the disease distinguishes the employment from most, if not all, other employments. …”
224. Comcare’s position in Mr Rose’s case is that although employees probably did drink on the train and that rules prohibiting drinking by staff were inconsistently and intermittently enforced, there was nothing inherent in “the nature of” Mr Rose’s employment at ANR as a drinks steward or a senior waiter which tended to expose employees to the risk of contracting an alcohol dependency any more so than any other employee who drank socially and may from time to time consume a drink at work.
225. In that regard, the example was given of professionals such as accountants and lawyers who have occupations that are stressful and they sometimes drink at work to relieve the stress of their employment. One would not say that alcoholism was an occupational hazard of those types of employment.
226. Comcare submitted that there was also embellishment in the evidence of Mr Rose and his workmates in at attempt to effectively lay blame for Mr Rose’s problems on the employer. They referred to the fact that Mr Rose also engaged in social drinking. For example, he would drink very heavily in Kalgoorlie on layovers because he had a brother there. He was also drinking socially from a very young age and drank at home.
227. Comcare argued that the PIDD Report was of limited assistance. It related to a period in the 21st century rather than to the period of time that the Tribunal was considering which went from the early 1950s through to 1986.
228. The applicant submitted that the Tribunal could find in favour of the applicant using the 1930 Act. They argued that it was an occupational hazard of working in the hospitality industry that one could become an alcoholic. In that regard they rely on the PIDD Report. They argue that the environment of working as a drinks steward or drinks waiter on the train was akin to working in a hospitality industry environment and that alcoholism is an occupational disease of the hospitality industry.
229. Under the 1930 Act, the Tribunal must find that alcoholism was due to the nature of Mr Rose’s work and that the disease either arose prior to 1971 due to the nature of his work, or it was aggravated, accelerated or recurred prior to 1971 because of the nature of his work.
230. Given the evidence that the Tribunal has received with respect to Mr Rose’s working environment prior to 1971, the Tribunal is not satisfied that it can be argued that alcoholism was effectively an occupational hazard of working as a drinks waiter on the train at the time or that his alcoholism was due to the nature of employment as a drinks waiter. The Tribunal has only anecdotal evidence of the use of alcohol by other workers and has no evidence that points to alcoholism being an occupational hazard of Mr Rose’s employment pre-1971. Further, even if it did reach that conclusion, the Tribunal does not have sufficient evidence to be satisfied that Mr Rose’s development of alcoholism prior to 1971 was caused by or aggravated by the nature of his employment.
231. It appears that Mr Rose had multiple other issues in his life. His drinking arose well before the period when he commenced to have some exposure to alcohol in the course of his employment. The Tribunal has already referred to the many factors in Mr Rose’s life that appeared to make him particularly susceptible to alcoholism, including his mother’s alcoholism, his difficult family upbringing, his apparently anxious personality, his desire to please peers and his unresolved grief over his father’s death, which appears to have occurred at some stage in the 1960s.
232. The Tribunal finds that Mr Rose’s alcoholism, which was first diagnosed in 1971, did not arise due to the nature of his employment with ANR prior to 1971.
233. What remains to be considered is whether factors in his employment post 1971 could have aggravated or accelerated his condition of alcoholism or could have caused a recurrence.
234. Under the 1971 Act, there is authority that contribution by employment to a disease or aggravation, acceleration or recurrence of a disease is required. The wording of the relevant provision (s 29) no longer requires that the disease be “due to the nature of the employment”, but rather that the employment was a “contributing factor”.
235. The test is to determine whether features of the employment did in fact contribute to the condition.
236. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, there is discussion of the construction of s 29 of the 1971 Act by the Full Federal Court. The words of s 29(1)(b) require employment to be “a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence” of the disease.
237. This is an easier test to satisfy than the test under the 1930 Act, and the test now established under the 1988 Act, which requires a “material” contribution by the employment. At page 323 of the Full Federal Court decision in Treloar, the Court comments as follows:
“… it follows … from a consideration of the plain words that once it is established that an employee in the doing of his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ and that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree. The same applies where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a ‘contribution’. … All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not ‘contribute’.”
238. Counsel for Comcare submits that alcoholism, once established, is a condition and not capable of aggravation, acceleration or recurrence. They argue that once the disease has developed, the condition is present and needs to be controlled by abstinence from alcohol. They submit that neither Professor White nor Dr Gisjbers have identified the disease of alcoholism to have a progressive characteristic. They also argue that there is no evidence that the disease itself remits. They acknowledge that it is a question of fact in any case as to whether any aggravation, acceleration, exacerbation or deterioration of a condition has occurred (Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626).
239. The Tribunal does not accept the contention that alcoholism is not a progressive disease. The National Council on Alcoholism and Drug Dependence defines alcoholism in the following terms:
“Alcoholism is a primary, chronic disease with genetic, psychosocial, and environmental factors influencing its development and manifestations. The disease is often progressive and fatal. …the disease persists over time and that physical, emotional, and social changes are often cumulative and may progress as drinking continues. …”
240.It is a disease that can remit and then have new manifestations.
241. In the Federal Broom case, the High Court held that there can be a compensable exacerbation of a disease where the experience of the disease was increased or intensified. In that case, the plaintiff already suffered from a disease, but her employment resulted in a new manifestation of it. Justice Kitto commented at pages 632-633:
“Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. …””
242. In the matter of Johnston v Commonwealth (1982) 150 CLR 331, the Court had to consider the issue of aggravation. The judgment in that case was delivered by JJ Gibbs, Mason and Wilson. That case involved a failure of the Commonwealth medical services to diagnose a cancer in the member of the Armed Forces. As a result, he ultimately died of that disease because it was beyond treatment once diagnosed. In that case, the respondent argued that there can be no aggravation in the case of an “autogenous disease which simply takes its natural course”.
243. In that case, the Court found that the failure to diagnose and then treat the disease was an aggravation. They found that the course taken by the disease in its progression after the date that the Commonwealth failed to diagnose the disease was a direct consequence of the failure of the Commonwealth to diagnose its presence and that therefore employment was a contributing factor.
244. The High Court accepted in that case that an aggravation could comprise a steady worsening of a disease over a period of years.
245. Looking at the evidence from 1971 onwards, it is clear that Mr Rose’s disease did progress in fits and starts until it reached a point in 1986 when he was very seriously ill and no longer capable of remaining in employment. His disease of alcoholism progressed and the effects of alcohol increasingly caused obvious damage to his health and his ability to function at work and in his family life. There is evidence also indicating that he was beginning to show some indications of permanent brain damage by the 1980s.
246. Problems were beginning to manifest in the mid 1970s and, although Mr Rose was not disclosing the extent of his alcohol problem to medical advisors possibly to protect his employment, it seems clear from the comments made in the report of the supervisor who reported on the 1976 incident, that ANR were well aware at that point in time that he consumed significant amounts of alcohol and it appears that it had been observed in the course of his employment. Despite that awareness, he was returned to a position where he continued to be exposed to alcohol on a daily basis and in a culture where consumption of alcohol, even during working hours, was considered to be acceptable.
247. There were other factors at play in Mr Rose’s alcoholism, but the question for this Tribunal is whether his employment was more than a de minimis contributing factor to his relapses and to the progression of his disease.
248. The Tribunal is satisfied that although there was not “active encouragement” of drinking and that the “rule book” paid lip service to a rule against drinking during working hours, Mr Rose was constantly exposed to alcohol in the course of his employment from the time that he commenced to work in the dining car as a young adult. By the 1970s, his employment was playing a large part in contributing to his relapses in that there was peer pressure to drink while at work and there was no adequate supervision or management of the staff on the passenger trains in terms of policing the rule against drinking. Management of ANR were aware that Mr Rose drank to excess, yet appeared to make no link between the amount of time he had off sick, the 1976 incident, his request to be moved to a conductor position and his consumption of alcohol at work. When he asked to be moved to a new position and it was recommended by two doctors, ANR simply “did not get it”. They sent him back to the working environment where he continued to be exposed to alcohol throughout his long working shifts.
249. It appears evident that by 1980, it was very clear to his employer that Mr Rose had a significant problem with alcohol, staff were refusing to work with him and he was not competently managing his job. Nevertheless, they allowed him to remain in the same position where they knew that he was exposed to alcohol on a daily basis and he was still able to drink during working hours and on the staff bus as ANR still did not properly manage the use of alcohol by employees in the workplace. There is no doubt that that constant re-exposure to the peer group pressure at work and the accessibility of alcohol at work progressed his dependence to a point where he was no longer able to function in his employment.
250. In the circumstances, the Tribunal finds that his employment with the Commonwealth did aggravate and progress his disease, particularly from approximately 1975 onwards and that his employer by failing to properly supervise the management of alcohol in the dining car and the use of alcohol by staff during working hours, created a situation where Mr Rose was constantly relapsing, despite his motivation to avoid alcohol.
251. The Tribunal notes that in that regard both medical experts are in agreement that his employment was a significant factor in his relapsing.
252. The Tribunal does not accept that alcoholism is a disease that cannot be aggravated or progressed. Alcohol causes progressive damage to the brain with ultimately Korsakoff’s Syndrome and liver malfunction being the end point of an alcoholic’s journey towards total disability.
253. There is no doubt that Mr Rose’s level of disability arising from alcohol progressively increased over the years with the 1980s showing increased malfunction and progressive deterioration in his ability to manage his work. The fact that he was able to become entirely alcohol free within two years of ceasing his employment underlines the significance that his working environment had in terms of his relapses.
254. In the circumstances, the Tribunal sets aside the decision under review and determines that, pursuant to the 1971 Act, Mr Rose’s employment by the Commonwealth was a contributing factor to the aggravation and recurrence of his disease of alcoholism.
I certify that the 254 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E T Eriksen (Member)
Signed: ...........J Coulthard...........................................
AssociateDates of Hearing 2 March 2009, 4 March 2009, 13 March 2009 and 11 June 2009
Date of Decision 21 July 2009
Counsel for the Applicant Mr D Bulloch
Solicitor for the Applicant Westside Community Lawyers
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore
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