Australian Postal Corporation v Barbara Bywater
[1997] FCA 747
•11 August 1997
FEDERAL COURT OF AUSTRALIA
WORKERS’ COMPENSATION - former employee of Australian Postal Corporation (a licensed corporation under s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)) - observation and reporting of theft at work - no effective action taken by superiors - hostile treatment by other employees - causation of state of anxiety and depression - cessation of work at Post Office in June 1993 - compensation paid for a time - whether entitlement to compensation under ss 14, 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an “injury” resulting in “incapacity for work” after 21 March 1994 - AAT found applicant suffered an “incapacity” for work after 21 March 1994, which extended to work other than at the Post Office - AAT found a material “contribution” of the employment to the anxiety and depression - whether AAT failed to distinguish between contribution by “employment”, and operation of extraneous factors, for the purpose of the definition of “disease” in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether the AAT failed to consider whether the incapacity after 21 March 1994 resulted from an “injury” as defined in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether the AAT failed to comply with the obligation to give reasons for its decision, in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4 (“injury”, “disease”, “ailment”), 14, 19
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
AUSTRALIAN POSTAL CORPORATION v BARBARA BYWATER
NG 477 of 1996
LINDGREN J
SYDNEY
11 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 477 of 1996 ) GENERAL DIVISION )
BETWEEN: AUSTRALIAN POSTAL
CORPORATION
ApplicantAND: BARBARA BYWATER
Respondent
JUDGE: LINDGREN J PLACE: SYDNEY DATED: 11 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 477 of 1996 ) GENERAL DIVISION )
BETWEEN: AUSTRALIAN POSTAL
CORPORATION
ApplicantAND: BARBARA BYWATER
Respondent
JUDGE: LINDGREN J PLACE: SYDNEY DATED: 11 AUGUST 1997
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Australia Post”) appeals to the Court from a decision of the Administrative Appeals Tribunal (“the AAT”) dated 20 May 1996 in favour of the respondent (“Mrs Bywater”), its former employee, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Mrs Bywater was once employed by Australia Post at the Dubbo Post Office. She ceased working there at the end of June 1993, although the employment relationship apparently did not come to an end until 31 January 1995.
The issue between the parties has been Mrs Bywater’s entitlement to be paid compensation by Australia Post under, relevantly, ss 14 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of time after 21 March 1994. On 30 May 1994 a delegate of Australia Post determined that there was no such liability. Pursuant to s 62 of the Act, Mrs Bywater requested Australia Post to reconsider that determination. On 21 December 1994, a Reconsideration Officer affirmed the earlier decision. Pursuant to s 64 of the Act, Mrs Bywater applied to the AAT for review of the latter decision. On 20 May 1996, the AAT set aside the decision dated 21 December 1994 and substituted a decision that Mrs Bywater had remained incapacitated for work on and from 21 March 1994.
GENERAL OUTLINE OF FACTUAL BACKGROUND
The following outline of the factual background is based on the AAT’s Reasons for Decision and uncontroversial documents in the Appeal Book.
Mrs Bywater commenced work with Australia Post at the Dubbo Post Office in December 1988. Initially her duties were cleaning duties but later she was transferred to mail sorting duties. In early 1991 she had twelve weeks’ maternity leave in connection with the birth of her son in January. Shortly after returning to work, she observed a mail sorter stealing mail. She reported the incident to her supervisor. On later occasions, she saw the same mail officer going through private mail boxes, an activity in which he was not authorised to engage. She remonstrated with him but he replied that it was his ex-wife’s mail and that he could take it if he liked. Mrs Bywater again reported the matter. Several times in 1992 she saw the same mail sorter interfering with mail and reported her observations. In her perception, no effective action was taken by her superiors in Australia Post in response to her various reports. She was distressed by this.
Other workers at the Dubbo Post Office began calling her a “dobber” and she was told: “Shut your mouth and don’t say anything” and other comments of a similar nature. One of the workers said of the mail sorter, “He’s been here for 15 years and he’s my friend and I know he’s been doing it but what’s the point of telling.” The lack of response to her complaints and the hostility of her work colleagues caused Mrs Bywater to experience distress, anxiety and depression.
In the first half of 1993 she was questioned by people from “Postal Security” and a detective. Apparently three other women working at the Post Office made statements in support of her allegations about the mail sorter, during 1993. Consequently, he was investigated and suspended from work. He then lodged an appeal, was reinstated, and subsequently accepted “voluntary retirement”.
In June 1993 Mrs Bywater took a week’s sick leave because she did not want to face the particular mail sorter at the Post Office. She visited Dr Pandya in Dubbo. He gave her a medical certificate for a week commencing on and from the following Monday 7 June, but because she did not want to return to work in the meanwhile, she altered the certificate so that it ran on and from Friday 4 June. Later in June she saw Dr Kavanagh who gave her a certificate for two weeks’ sick leave. She also altered this certificate to enlarge her time off work by an additional two days.
Mrs Bywater felt that she could not go back to work at the Post Office and has not done so since June 1993. She felt that she could not face the people there who had accused her of “dobbing”. After June 1993, she stayed at home. She had Family Life counselling and did a self-esteem course as part of a rehabilitation programme.
Mrs Bywater was paid compensation by Australia Post from 4 June 1993 to 29 December 1993. The notifications by Australia Post to Mrs Bywater of approval of her claims for compensation referred to her unfitness to perform her normal work as being due to “acute anxiety reaction”. Mrs Bywater then took maternity leave in connection with the birth of her daughter on 5 February 1994. As I said earlier, it is only in respect of her entitlement to compensation in respect of the period after 21 March 1994 that the parties are at issue.
THE LEGISLATION
Subsection 14(1) of the Act provides that Comcare (a body corporate established by s 68 of the Act) is liable to pay compensation in accordance with the Act in respect of an “injury” suffered by an “employee” if the injury results in, inter alia, “incapacity for work”. The expression “employee” is defined in subs 5(1) to mean, relevantly, a person who is employed by a “licensed corporation”. Australia Post is a licensed corporation. Section 19 provides for payment of weekly compensation to an employee who is incapacitated for work as a result of an injury.
As a result of the operation of various provisions in Part VIIIA of the Act, and, in particular, s 107M, Australia Post is liable to pay compensation under the Act in respect of an injury suffered by Mrs Bywater and Comcare is not liable to pay that compensation.
It is necessary now to note the definitions of the words “injury”, “disease” and “ailment” in s 4 of the Act:
“‘injury’ means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment; ...”
“‘disease’ means:
(a)any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation; ...”
“‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); ...”
THE AAT’S REASONS FOR DECISION AND AUSTRALIA POST’S GROUNDS OF APPEAL
The AAT’s Reasons are set out in sixty-three numbered paragraphs. After dealing with introductory matters, the AAT gives an account of Mrs Bywater’s evidence in pars 4-21. I have referred to salient features of that evidence in the outline above. However, Mrs Bywater also gave evidence of certain other matters which assume importance for the purpose of the appeal. Australia Post submits that these other matters were, relevantly, extraneous to and independent of Mrs Bywater’s employment. They assume importance in Australia Post’s grounds of the appeal and written submissions and are as follows:
While at work and after leaving work in June 1993, Mrs Bywater received anonymous telephone calls at her home from an individual who, she believed, was a workmate named “Ted”, in which she was abused for having reported the pilfering;
Both while she was at work and, importantly for present purposes, either after she ceased work in June 1993 or while she was still working but outside working hours, fellow employees abused her, maintaining that she should not have reported the mail sorter’s activities.
In the street in Dubbo, the wives of fellow employees named “Ted” and “Dean” abused her for having complained about the mail sorter.
Her alteration of the medical certificates issued by Dr Pandya and Dr Kavanagh, the effect of which was apparently to give Mrs Bywater an additional three days off work, was investigated in September 1993 by Tony Nixon of “Australia Post Security” which made Mrs Bywater feel that she was “the guilty one”. (The evidence showed that on 19 October 1993, Mr Nixon reported that he considered that there was sufficient evidence for disciplinary action against Mrs Bywater and that a brief of evidence was being prepared for the Director of Public Prosecutions (“DPP”) for consideration of the laying of criminal charges against her, but that the DPP decided not to prosecute, sending a letter of caution to her.)
After ceasing work at Australia Post in June 1993, Mrs Bywater attempted work at Woolworths in Dubbo. She worked four night shifts there but felt that she could not continue as she believed that people there knew about her problems at the Post Office and were laughing at her.
Australia Post accepts that Mrs Bywater’s witnessing of the thefts, reporting of them to her superiors, the ineffective response of those superiors and the hostility of her co-workers demonstrated to her at the Post Office, were all part of the state of affairs to which she was subjected as part of her employment. However, Australia Post distinguishes from that “state of affairs” the five matters enumerated above.
In pars 22-48 of its Reasons, the AAT gives an account of the evidence of other lay witnesses. They were employees of Australia Post and, in one case, the wife of an employee. In view of the findings made by the AAT in favour of Mrs Bywater referred to below, I need not give an account of that evidence.
In pars 49-56, the AAT gives an account of the expert medical evidence that was given in relation to Mrs Bywater’s alleged incapacity for work. That evidence was given by no less than six doctors. To the extent necessary, I refer to this evidence below.
The AAT’s conclusions were expressed in pars 57-63. Paragraph 60 assumed particular importance on the hearing of the appeal, but it is desirable that all seven paragraphs be set out.
“57. The Tribunal considered the applicant a credible witness. She was consistent and credible in cross-examination and re-examination, and frank about her behaviour involving the two medical certificates. All the witnesses directly involved agreed that the applicant had reported alleged stealing at the post office, had repeatedly requested that action be taken and that she was distressed when no action was taken. The Tribunal accepts the evidence of the applicant, Mr May and Mr Harvey that she first reported the alleged offences in 1991 and that no obvious action was taken until late 1992 by Australian Postal Security. The Tribunal notes the evidence of Mr Sadler was inconsistent with this.
58. The Tribunal accepts the evidence of the applicant, Mr May and Mr Harvey that it was widely known that postal articles were missing from Dubbo Post Office in the periods 1991 to 1993. The Tribunal concludes that the procedures which followed the applicant’s allegations were less than satisfactory. They were delayed, and from the accounts of Mr Hodges and Mr May, were less than efficient. All the supervisors agreed the applicant was distressed by the apparent inaction and by their apparent inability to take action themselves to detect the dishonest behaviour which they all accepted was occurring.
59. Dr Lafferty, the treating psychiatrist, Dr Skinner and Dr Grady, accept that the applicant suffered from a depressive illness at the time of her difficulties at work. Dr Gibney also apparently agreed that she had had a depressive illness in commenting that she was being kept in fair control with Prozac. In a somewhat inconsistent report he referred to her residual symptoms as being work-related, but her mental difficulties not being work-related. Dr Dowda, in his assessment in 1993, considered the applicant’s symptoms were more likely due to her low level of coping abilities and difficulty with her home situation. This conclusion, however, was premised on his acceptance of assurances that procedures to investigate her claims were correct and satisfactory. Dr Skinner, when she saw the applicant in April 1994, considered her condition under control with medication. Dr Lafferty, when he last saw the applicant in November 1995, noted that she continued to need therapy. The clinical note of November 1995 was the latest in the notes of Dr Lafferty in evidence before the Tribunal but the applicant gave evidence she had seen him since.
60. The Tribunal finds that the applicant was suffering an incapacity for work at the Dubbo Post Office. The medical evidence supports a material contribution between the applicant’s anxiety and depression and her situation at work. This incapacity continued after the person accused of stealing left the post office. The Tribunal accepts the applicant’s evidence that members of staff of the Dubbo Post Office who were long time co-workers of the person accused, disapproved of the actions of the applicant and expressed that disapproval to her. That those who gave evidence declared a lack of knowledge of this is understandable but not credible.
61. However the issue remains as to whether that incapacity extended to other employment. Counsel for the applicant referred the Tribunal to the decision in Re Rizkallah and Australian Postal Corporation (1991) 23 ALD 517 where Deputy President McMahon looked at the appropriate market place (at 520):
‘...what the applicant must demonstrate is an inability to sell his labour in the open market. Merely to show that he is unable to work in his former place of employment with his former fellow employees is not sufficient to establish incapacity. He must show that he has lost some ability for doing work in the labour market in which he was working or might reasonably be expected to work. The labour market in the present circumstances must be the whole establishment of the Australian Postal Corporation. The fact that the applicant sought a transfer to Perth and ultimately moved there indicates that the available labour market must be considered as Australia wide. The applicant therefore is not, and has not been at any time, incapacitated for work within the meaning of the statute.’
The Tribunal accepts the submission on behalf of the applicant that the labour market in these circumstances was confined to Dubbo and its surrounding districts. The Tribunal notes that the applicant in these proceedings has a husband, family and house in Dubbo and gave evidence that at the time she married she intended to live in Dubbo for the rest of her life. There is no evidence that she was able or willing to transfer to another location. There is also evidence before the Tribunal that the applicant attempted work in the Dubbo area in 1993 at Woolworths and could not cope.
62. The Tribunal notes that the applicant has received treatment from Dr Lafferty beyond November 1995 and he considers her ability to be successfully employed on an on-going basis in Dubbo reduced. The Tribunal considers the evidence indicates that further treatment and rehabilitation should result in her being able to be successfully employed.
63. Therefore the Tribunal sets aside the decision under review and substitutes a decision that the applicant has remained incapacitated for work on and from 21 March 1994.”
GROUNDS OF APPEAL
Australia Post strongly disputed before the AAT that Mrs Bywater suffered incapacity for work after 21 January 1994 but does not challenge on the appeal the AAT’s finding against it on this issue.
Australia Post’s grounds of appeal can be analysed as falling, essentially, into three categories. In summary, these are as follows:
The AAT failed to distinguish between material “contribution” to Mrs Bywater’s mental ailment after 21 March 1994 by her employment by Australia Post (for the purpose of the definition of “disease” in s 4 of the Act, as those notions have been explained in the cases) on the one hand, and the operation of what Australia Post characterises as the five “extraneous” or “independent” factors to which I referred earlier.
The AAT failed to consider whether the incapacity which it found Mrs Bywater suffered after 21 March 1994 resulted from an “injury” as defined in s 4 of the Act, that is, relevantly, a “disease” being a mental ailment, disorder, defect of morbid condition, contributed to in a material degree by her employment. (This ground appears in Australia Post’s written submissions and in its Notice of Appeal although it was scarcely addressed as an independent ground in oral submissions.)
The AAT failed to comply with the obligation imposed on it by ss 43(2) and (2B) of the AAT Act in that it failed to state legally adequate reasons for its conclusions favourable to Mrs Bywater in relation to these two issues.
The grounds to which I have referred were explicated in Australia Post’s lucid written and oral submissions, to which the foregoing summary does not do justice.
REASONING
Australia Post referred to cases in which the meaning of “employment” and the nature of the causal connection between employment and ailment have been discussed. For example, it referred to the following statement by Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (at 641):
“When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.” (underlining supplied)
Counsel for both parties relied, with different emphases, on the following statement by Kitto J in the same case (at 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. It is in that sense that I should understand the language of the definition.” (underlining supplied)
In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 (FC), the Full Court emphasised that the contribution made by the state of affairs to which an employee is exposed in the performance of work and to which he or she would not otherwise have been exposed need not be of any particular size or degree. In their joint judgment, the members of the Court added (at 323):
“In all cases the question is whether there has been a ‘contribution’. Consistently with what was said by Windeyer J, [in Federal Broom Co Pty Ltd v Semlitch] ‘contribution’ does not require that the contributing factor be a causa sine qua non; the ‘but for’ test is not appropriate nor is the causa causans or ‘real effective cause’ or ‘proximate cause’ formulation. 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’.”
The Full Court also emphasised that the use of the word “material”, in relation to the “contributing factor” in the legislation, adds nothing of significance:
“The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.” (at 323)
Accordingly, Mrs Bywater was entitled to succeed if she suffered incapacity for work after 21 March 1994 resulting from anxiety and depression which was contributed to by the state of affairs to which she had been subjected in the course of her work at the Dubbo Post Office down to June 1993, even if that anxiety and depression was also contributed to by other factors.
In my opinion, par 60 of the AAT’s Reasons, particularly when read in conjunction with par 59, exposes the following findings:
(a)after 21 March 1994 Mrs Bywater was still suffering an incapacity for work at the Dubbo Post Office;
(b) that incapacity resulted from “anxiety and depression” or “depressive illness”;
(c)that “anxiety and depression” or “depressive illness” was contributed to by her “situation at work”, by which the AAT meant to refer to her observation and reporting of the mail sorter’s conduct, the lack of effective action in response by her superiors and the hostile reactions which she encountered from co-workers at the Post Office, down to June 1993.
It is useful to note the subject matter of the respective paragraphs of the Reasons and the course of the AAT’s reasoning in them. In pars 57 and 58, the AAT finds that Mrs Bywater repeatedly complained of the thefts to her superiors, that there was no effective response, and that she “was distressed” (at the time) as a result. Paragraph 59 deals with the medical evidence. The first sentence is:
“Dr Lafferty, the treating psychiatrist, Dr Skinner and Dr Grady, accept that the applicant suffered from a depressive illness at the time of her difficulties at work.”
Read in the light of the second sentence of par 60, this is a finding that at the time of her difficulties at work (down to June 1993), Mrs Bywater had a “depressive illness”. In the second last sentence of par 59, the AAT observes that when Dr Lafferty last saw Mrs Bywater in November 1995, he “noted that she continued to need therapy”. The natural meaning of this sentence is that Mrs Bywater continued to need therapy for her continuing depressive illness.
In par 60, the AAT turns to the subject of Mrs Bywater’s incapacity for work at the Dubbo Post Office after 21 March 1994. Australia Post accepts that the AAT’s finding in the first sentence of par 60 is a finding that Mrs Bywater was suffering an incapacity for work at the Dubbo Post Office, not only after she ceased working there in June 1993, but after 21 March 1994. I think that Australia Post is correct to make that concession. The AAT understood that the period after 21 March 1994 was the period in relation to which the parties were in dispute.
The second sentence of par 60 is important. In it, the reference to Mrs Bywater’s “anxiety and depression” could, on its face, be a reference to anxiety and depression contemporaneous with or subsequent to her work at the Post Office down to June 1993, or to both. I think that it is a general reference to all the anxiety and depression, whenever occurring, that caused Mrs Bywater’s incapacity to work at the Dubbo Post Office. The third sentence (“This incapacity continued after the person accused of stealing left the post office”) is a finding that the incapacity for work at the Post Office, which arose from Mrs Bywater’s anxiety and depression, and was contributed to by “her situation at work” (see below), continued after the mail sorter left the Post Office. Evidence before the AAT showed that after being suspended then reinstated, the mail sorter was due to resume duties on 25 August 1993, took sick leave and then long service leave from that date to 21 December 1993, and was offered early voluntary redundancy on 24 November 1993. The date on which he accepted redundancy and as a result ceased to be employed by Australia Post was not revealed by the evidence but was apparently some date not earlier than 21 December 1993. Similarly, the evidence does not reveal the period for which the mail sorter was suspended from work, but clearly it was a period ending on 25 August 1993. The import of the third sentence then is that Mrs Bywater’s incapacity for work at the Post Office (referred to in the first sentence) continued even after it was clear that if she returned to work there, she would no longer have contact with the mail sorter.
The only immediate cause of the incapacity referred to in the Reasons was “anxiety and depression” or “depressive illness”. There is necessarily implicit in par 60 and the second last sentence of par 59 noted earlier (“Dr Lafferty, when he last saw the applicant in November, 1995, noted that she continued to need therapy”) a finding that the condition of anxiety and depression continued after 21 March 1994, since it was the cause of Mrs Bywater’s incapacity for work at the Post Office which the AAT found continued to exist after that date.
In my view, a fair reading of the expression “situation at work” in the second sentence is a reference to the state of affairs to which Mrs Bywater was exposed at work in the Post Office down to June 1993, namely, her witnessing of the repeated thefts, her successive reports of the matter to her superiors, the “less than satisfactory” and “less than efficient” response of the supervisors, and the unsupportive and hostile response at work of her fellow employees (see par 58 of the Reasons set out earlier).
This view receives support from “the medical evidence” to which the second sentence of par 60 refers. As noted earlier, an account of that evidence is given in pars 49-56 of the Reasons. Paragraph 59, set out earlier, gave a summary account of it. The “medical evidence” referred to in the second sentence of par 60 is clearly a reference to that medical evidence which supported the connection between Mrs Bywater’s anxiety and depression and her “situation at work”. The evidence which supported the causal connection was to be found chiefly in a report of Dr T C Lafferty dated 31 July 1995 and the report of Dr James Grady dated 13 March 1995. Dr Lafferty was a consultant psychiatrist who treated Mrs Bywater from September 1993 on referral from her general practitioner. In his report dated 31 July 1995 to Mrs Bywater’s solicitors, Dr Lafferty said:
“As I mentioned in previous reports Mrs Bywater developed symptoms of depression and anxiety which occurred in the context of stress in the workplace which did not seem to be adequately resolved during her time of employment. As a result of this stress she is no longer working for Australian Postal Corporation. I feel the reason why she left the work was because of the ongoing symptoms which had been generated by her employment and the stress in the workplace. These ongoing symptoms were symptoms of major depressive illness as well as an anxiety state. She continues to experience these symptoms as well as having lost a good deal of confidence in herself. At this stage this would reduce her ability to be successfully employed on an ongoing level in Dubbo.” (underlining supplied)
Dr James Grady was a consultant psychiatrist who saw Mrs Bywater at the request of her solicitors on 13 March 1995. In a report to them of that date, he said:
“Diagnosis:
According to the history obtained Mrs Bywater suffered Situational Stress at work brought on by confusion over ambivalent attitudes of fellow workers and superiors in reactions to her reporting of improper behaviour by a fellow employee.
She developed symptoms of anxiety and depression when she felt the pressure mounting up against her as a result of her reporting the situation to her union after her supervisors at work apparently did not take the action she felt they should have taken.
She felt she was ‘sent to Coventry’ for speaking out as she did and some of the examples of this which she reports seems[sic] somewhat paranoid and she was probably over-reacting. Careful questioning does not reveal that she at any time suffered from paranoid delusions and there is no evidence that she was at any time psychotic.”(emphasis added)
Dr Lafferty’s report, and in particular the first paragraph of Dr Grady’s diagnosis, make it clear that the doctors are supporting a causal connection between Mrs Bywater’s depression and anxiety and what happened in the workplace itself, that is to say, within the Dubbo Post Office while Mrs Bywater was working there. This medical evidence supports the view that the second sentence of par 60 of the AAT’s Reasons is intended to bear its plain meaning, that is to say, that the expression “situation at work” refers to the state of affairs to which Mrs Bywater was exposed at the workplace and in the course of, and by reason of, her employment there.
By the end of par 60, the AAT had made findings that after 21 March 1994, Mrs Bywater continued to suffer incapacity for work at the Post Office resulting from “anxiety and depression” or “depressive illness” which was materially contributed to by her employment at the Post Office down to June 1993. It is true that the AAT does not refer, in this part of its Reasons, to the possibility that the continuing incapacity was caused by any of the other five factors to which I have referred and was not materially contributed to by the situation to which Mrs Bywater had been exposed at the Post Office, notwithstanding that counsel who appeared for Australia Post before the AAT made this distinction in his submissions. Contribution by such other factors would not, of course, exclude the possibility of contribution by the situation at the Post Office. In my view, it is not an error of law that the AAT did not address the distinction, in view of the positive finding which I conclude that it made, that there was material contribution by Mrs Bywater’s situation at work at the Post Office itself.
The AAT continued in pars 61 and 62 of its Reasons to determine whether Mrs Bywater’s incapacity which it had found, in par 60, continued after 21 March 1994 and was contributed to by what happened at the Post Office, extended to employment elsewhere than at the Post Office. It found in her favour in this respect and no challenge is made to that finding.
What I have said already suffices to determine the appeal in Mrs Bywater’s favour. I will note, but do not find it necessary to deal with, some further submissions which were made on her behalf. First, her counsel submitted that if Mrs Bywater’s ongoing anxiety and depression after 21 March 1994 did not constitute a “disease” in the sense of an ailment contributed to in a material degree by her employment, nonetheless she suffered an injury other than a disease being a “mental injury arising out of, or in the course of, [her] employment” for the purpose of the definition of “injury” in s 4 of the Act. Secondly, he submitted that the five other supposed causes of Mrs Bywater’s incapacity were not extraneous to, or independent of, the state of affairs to which her employment at the Post Office exposed her, and were, on the contrary, either aspects of it or so closely connected with it as to form part of an unbroken causal link between that state of affairs and her incapacity. Thirdly, counsel for Mrs Bywater submitted that, in any event, no part of the AAT’s Reasons suggests that it gave undue weight to these matters in comparison with the state of affairs at the workplace itself.
CONCLUSION
In my view, Australia Post has not established any error on the part of the AAT, and the application must be dismissed with costs.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren
Associate:
Dated: 11 August 1997
Counsel for the Applicant: Mr G T Johnson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr L T Grey Solicitor for the Respondent: Carroll & O’Dea Date of Hearing: 29 July 1997 Date of Judgment: 11 August 1997
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