Australian Telecommunications Commission v Tzikas

CATCHWORDS

>.,

Trlbunal - iompensatlon fCommonwealth Governmeht, Employees,

&&	1971 - llablllty of the Commonwealth to pay compensatlon

In respect

of an injured employee pursuant

to award under the

Act - dlrect

effects

of orlginal ~ n ~ u r y

ceaslng to

lncapacltatlng - "sequelae" of injury

havlng

continulng

effects - whether exlstlng neurosis aggravated by

"sequelae"

- whether

aggravation

contributed

t o

Commonwealth

employment	-	whether aggravation contributing to current
incapaclty.

Compensation (Commonwealth Government Employees) Act

1971

ss.5(1),

5(11),

2 7 ( 1 ) ,

2 9 ( 1 ) ,

2 9 ( 2 ) ,

31(4).

AUSTRALIAN TELECOMMUNICATIONS COMMISSION	v. VICKI TZIWS
VG No. 236 of 1385

Smithers, Sweeney and Hoodward	JJ.
12 August 1385

Melbourne

- >

f r

* > I

' IN THE FEDERAL COURT OF AUSTRALIA 1

)

VICTORIA DISTRICT REGISTRY	)	No. VG 236 of 1984
1

DIVISION

GENERAL

)

ON APPEAL FROM THE GENERAL ADMINISTRTIVE DIVISION

OF THE ADMINISTPATIVE APPEALS TRIBUNAL CONSTITUTED

BY MR I.R. THOMPSON [DEFIJTY PRESIDENT)

THE

COURT: Smithers, Sweeney and Woodward

JJ.

DATE

12 August 1985

PLACE

Melbourne

MINUTE OF ORDER

THE COURT ORDERS:

1. That the appeal be upheld.

That the decision

of the Tribunal dated

July 1984 be set aside.

3 . That the matter be remitted to the Trlbunal

for Its determlnation in the light

the

opmion of the court.

4. That costs of the origlnal hearing before the

Tribunal be determined

by the TribunaL

That liberty be reserved

to the applicant to

make such application in relation to costs as

it may

be advised.

Note: Settlement and entry of Orders is dealt with in

Order 36 of the Federal Court Rules.

IW T!IE KJD-FfiAL

COURT 01- AUSTRALIA )

VICTORTA T)TSTECx REGTSTR'I	)	NO. VG 236 of 1905
)
GEWRPL DIVISION	)

On appeal from the

Administrative Appeals

Trlbunal

Setween

: AUSTRALIAN

TELECOMMUNICATIONS

COMMISSION

(Applicant)

A A :

VICKI TZIXAS

(Respondent)

Coram: Smithers, Sweeney and Noodward

JJ.

Date :

1 2 August 1985

Reasons €or Judment

Snlithers J. :

This is an

appeal

from

a decision ("the

decision") of a Deputy President Tribunal ("the Tribunal") t o set aside a determination of

of the Administrative Appeals

the

delegate of the Commissinner for EmpLoyees' Compensation

( "the

determination") and remit the matter to the Commissioner for

reconsideration,

applicanli

the

w1 th

Australian

Telecommunlcntions

Commission

( "Telecom")

pay

the

respondent's %costs.

The determinatlon, dated

20 June

1903,

was in terms that Tclecom was not lxable to pay compensation

In accordance

with

the

provlsions

the

Compensation

I .

2 .

(Commonwealth Govcrnment Employees) Act 1971

("the Act") in

r~spect

of .Iny Incapacity for wock suffered by the respondent

nn zn,.t fkom

the

date

of determination, or in

respect of any

medlcal treatment undergone by the respondeqt on and from that

date.

The matter was remitted

to the Commissioner by the

Deputy President

€or reconslderation In accordance with

express direction that the respondent had at all tlmes since 20 June 1983 (which mistakenly aTpears as 10 June 1981 in the

typed decision) remained totally incapacitated

f o r work and

that the said

t o t a l incapacity for work had continued to

the result of the personal injury specified in

a determination

of a

delegate of the Commissloner dated

June 1981

("the

earlier determlnation"). The personal injury

so specified was

the

aggravation

and

acceleration

of the disease o€

psychoneurosis.

The

respondent was

40 years old at the date of the

decision. She was born in Greece and was married there at the

age of

16.

She arrived in Australia

27 November 1966

together with her husband and two children.

The

respondent

was not in employment in Greece but aftzr coming to Australia

she was employed

number of situations. In 1971 she

was employed by the Commonwealth

in the Postmaster-General's

Department.

After

Telecom

was

established

l975

she

continued with the same work but

wzs henceforth employed by

Telecom.

Fler work included several types

of light factory

work.

At ll.SO a.m. on

26 March 1976 she stopped working on

in preparations for doing so when she f e l t her heart pounding, a

order

to make

tea.

She

had

started

the

machine

3 .

b u z s ~ n g

no1ze i n hcr brain

and hcr cars , and hcr legs felt

weak so ILhat she co!Iapsed to the f l o o r .

She was taken to

hospital.

s'nc h 3 5 not worked for more

th .m a few days since.

I	She described the nature of	her	injury or disease giving rise
I

to her incapacity

as "nervous condition

- caused by noise at

i;orkshops" and declared that

thc

"noise became oppressive",

resulting in her condition. She stated that the symptoms

first became apparent In December

1975.

By the time the case

had come before the Tribunal, howevc?r,

~t was accepted by both

parties that the respondent had suffered from mental Illness since at least 1972. After consideration of varc1ous inedlcal

reports, the Commissioner's delegate accepted the opinion of

Dr. A . Sinclzir, the

rnedlcal referee appointed

to the case,

that the employee psychoneurosis to which her employment was not

suffered

froin a long

standing

chronic

a contributing

factor.

On this

basis the employee's clafin f o r

compensation

was relected by

R determination dated

3 Noveinber 1978.

The respondent

appealed. to the

former

Commonwealth

Employees'

Compensation

Tribunal

( ''the

Compensation

Tribunal"), whose decision of 18 July 1980 was to affirm the drtermination of 3 November 1978. Two psychiatrists, D r . N .

Parker and Dr. P. Cohen, were called

the respondent and D r .

Slnclalr was called by Telecom

the

hearing

the

Compensation Tribunal. The respondent had been re-examined by

Dr. Sinclair prior to that hearing.

The respondent ,appealed

on a question of law to a single

judge of th;s

court.

The appeal came on for hearing before me

on 13

Mhrch 19Cl.

Afier hrLtt Ins

further evldcnce

r r u m

L h r

I	medical expert.5	rho had given evidence before Compensation	the Compensatlon
I

I	Trlbunal I found	the in law in adopting Dr. Sinclair's conclusion in the light	Tribunal	had	made	an error
I

facts of which

Sinclair was unaware but

which the

Compensation Trlbunal had been informed, namely that

noise was

.I s t r e s s f u l characteristic

of the respondent's

work, as

was

also strict discipline in the workshop,

whlch there had

been a subjective reaction on

the part of the respondent.

said.

"Having regard to my views about the proper inferences to be drawn from the evldence as it stood at the end of the

hearing before the Compensation Tribund

on a balance of probabilities and

of the

thrust

the evidence given to this

Court, I am satisfled that the applicant

suffered aqgravation and acceleratlon

the disease of psychoneLdosis

to which

the

employment

the

employee

!Telecom) ' ~ 2 5 R

contrlbutjng factor and

that as from 26 March

1976 the

(respondent)

was

totally

incapacitated

f o r

work

and

that

such

incapacity

resulted from such

aggravation

and

acceleration

the

disease.

Nhether

this

class

of incapacity or any

incapacitv will be permanent is another

matter." (Emphasis added).

On the above basis, I remltted the case

to the delegate

of the Com!nlssioner

for determination of the amount to be

paid, which determlnatlon was

d u l y

made.

Twenty respondent was examined afresh by

months

passed.

18 November 1982 the

a psychlatrist, Dr.

Conron. Thls examinatlon was arranged by Telecom and a5

result of thc opinion given by Dr. Sonron the determination

was

made

on respondent again appealed, thls time

June

1983

agalnst

the respondent.

Tne

t.0

the Tribunal

(now

sexzed of the power formerly vested Tribunal). T'ne Tribunal had the

the

Compensatlon

bemflt of a large number of

medlcal reports, some of which post-dated the determmation, tendered by both parties. Oral evldence was adduced from the

medical experts. At the hearlng, the Tribunal

took the view

that

the

evidence

established incapaclty was the result of

that.

the

re5pOndent'S

a mental illness from which she

had been and was suffering.

He concluded "the only issue"

for decision in the circumstances

is:-

" .._

whether the aggravation and acceleration nf

the mental illness

(the respondent's)

employment

Telecom

has

continued,

and

continuing, to contribute	to the causation of that
incapacity".

"he respondent gave evidence before

the Tribunal that in

recent years she had "felt very

bzcl" and that at no time had

she felt any better than in

1976 or 1978. She suffered from

noises in her ears and at night they kept her awake. She also

Suffered from palpitations of the heart, again principally

night. She

had had pains in various pacts

of her body.

She

had tried to work on a

number of occasions. In 1901 she had

assisted her husband in

a coffee lounge business

whxch he ran

for a short period with

his cousin but

het- assistance had been

limited to about an hour

day; she said thzt she had worked

there more for the mixing with other people than for the value

purpose of getting out

her home and

of thc assistance

which she was giving.

Gn one occasion w'mle

she LES

workirlg

I I

at sanzwlch

bar, two custulllrrs llad conle there wearing

1.1~

I I	Telecom uniforms that she used to wear, she had been	afratd
I I

thst the]; would recognize her and tell her employer

her

work hlstory. She had

felt

ill when she

saw them. On one

occasion when sh?

was on the m y by tram to attend ;in

English

languag? collrse she passed the Telecom premises at which she had worked; when she had seen them, she had felt ill. She

said that many of the

noises in her ears remnr?ed her of

the

I	I	sounds of machinery	at Telecom.
I I

The Tribunal made the following

findinq in relation to

the origins of the respondent's mental

condltion:

"The evid-ence Sefore the TriSunal

has established beyond doubt that

the applicant

is, and has been since

at least 1972, suffering

from a

mental

illness

vhich

the

prlncipal cause of het- incapacity. That illness was not caused by her

i	employment.

~	He went on -
I I

"How?ver, the effect o€ section

5(l1) of the Act is that, for so

long as any

aggravation

acceleration of the

Illness by her

employm-nt

contributes

causing

the incapacity,

the incapacity is to

be taken

be the result of that

aggravation

acceleratlon.

The

degree of contrlbution need not be

high; It need be only

of sufficient

signiflcnnce that

~t can

truly be

said to

be contributing

the

incapacity.

The Trih~n~?l

w a s ,-mfronted wil:h z divprqPnc? nf mrrlic,al

opinion.

Dr. Cont-m'~i ceport sluggesteci I-hdt the respondent

had

remained

totally

lncapacltated

for

work because of

neucosls, but that hPK

current incapacity resulted. from the

natural deterioration of her nental condition and could not,

at this

stage,

attributed

any

aggravation

acceleration of it by her employment.

I	Giving that it was clear that she had been suffering from anxiety	evidence he amplified this	conclusion.	said	He
I

I	neurosis and depresslon for some	years	before March 1976 and
I I

that her condition had been steadily deteriorating. Even if it had not been aggravated or accelerated by the employment

factors,

it would. 'nave continued to det?riorate

and

the

present stage of her illn??s would

have Seen reachect as a

result of that continuing deterioration, in his view,

within

two years after 1976, and certainly by June

19C3.

She

m s

I I

incapacitated now 5y her mental lllness the present state

which was not contributed to by employment factors. They had

exacerbated

the

illness

for

5ome

time

but

t?.;c- natural

worsening of the illness had overtaken that exacerbation well

before June 1983.

I I

Fat-ker, between July 1379 and April

vho examined the respondent thrce times

Dr.

1984, wrote a report in March

1983

agreeing

with

D r .

Conron

that

the

respondent's

persisting neurotic symptoms were not

attributable

to any

stress experienced ln the respondent's employment. However,

he modified this view in Aprll

1384 by stating the respondent

continued t o be affcct?d bv her cxpcriencc .at Tclccom. At tklc Tiibunal hearlng he gave evidence l;hat, although there

was	no longcr any employment stress, the memory of her

employment experience condltion, exacerbated by the litigation process.

w a s

contributing

her

current

Dr. A . Gouras, one of the respondent’s treating general practitloners, expressed

t‘ne

opinlon that the stresses

work whlch had aggravated and accelerated the

respondent’s

mental lllnf?55 were contlnuing

to have an ongoing effect, not

directly but through their sequelae. Amplifying this view,

Dr. Gouras indicated circumstances as that after March

that

the

sequelae

included

such

1976 the respondent was not

In employment and was; not qualified to recelve an invalid pension or workers‘ compensation and that the effect of the

aggravation of her

illness

was

that

she

had

lost

her

employment and for the first time had become qualified for workers’ compensation or social security benefits or both ancl

that her inability

t o work had aff1:cted

the family income

and

her status In the family. The sequelae were, in

Gouras’

opinion, continuing to affect her present condition and,

hence, her capacity for employment. Dr.

Cohen, one

Telecom‘s medicsl wltnesses, thought it likely the respondent

had never really wantpd. to work

and that there

was an element

of secondary gain In being unable to

do s o , which Dr.

Cohen

concec‘,ed might

itself

5 e seer as a sequel

the

acceleration

aggcavation

thc

mental illness

still

contlnuirq to have an effect.

, I

’

r’

??I@ Trlbun:J said c,:

the oplnions expressed by Dr.

Conran, Dr. Cohen

and Dr. D. Sim,o, who

zxamined

the

respondent on behalf of Telecom:

“I accept the

evidence of those three

psychiatrists that the applicant would by

now have been totally incapacitated by

her

illness

even

i€ it

had

not

been

aggr2vated

and

accelerated

by her

employment“.

I I

He continued:	I
I
i
I

“Nevertheless, it is

her present mental

condition which

incapacitating her

and, if that

conc‘rition is

partly

the

result of the sequelae of the aggravation

and acceleration of the illness, then by virtue of the nrot-isions of sections 5(11) and 29 of the Act, the aggravation

and acceleration are to be taken to be

contributing to her present incapacity

for 1JOfk . ‘I

On consideration of the evidence the Tribunal found that

the association of the noises

ir. the ears of the respondent

with Tclecom and her reactions

to her memories of Telecom

were symptoms simply

the respondent‘s neurosis and not

manifestations of that lllness Seing caused or contributed to

by employment factors. He added:-

“It remains

considered

whether

the

applicant‘s mental

illness

now

wholly

the

original

illness

its

natural

course

develnpment,

unaffected by

the

aggravation

acceleration by her employment

or includes as part

o€ it

a continuing hysterical reaction to that

aggravation and acceleration.”

Th? Tribunal took notice of the evidence of Dr.

Cohen

that the respondent

had Fever wanted to work and there was an

element of secondary gain in being unable to do so.

Speaking

of the evidence of

the medical witnesses on the matter of the

possible effects of the seqluelae of	the orig~nal aggravation
the Tribunal said:

"A11 of them accept?d that such sequelae could

produce a reactlon, although it was not clear

whether all of them limited that to a hysterical

reactlon,

and

that

such

a reaction

could

contrjbute to a

continuing incapacity long after

the

initial

injury

dlsease

aggravation

acceleration had ceased to do

so directly."

At the hearing counsel for Telecom submitted that it ought to

be accepted from

ths

evidence of various of the medical

witnesses that as from 20 June 12383 it was the underlying illness alone which was inrapacitating the respondent and that the sequelae thereof were not contributing to that incapacity.

As to this the Trlbunal said:

A s

each of the psychiatrists received only

partial history from the applicant

and

did not

have before him all thc material which is before

the Tribunal, the Trlbunal is better placed than

any of them were to determine whether the sequelae

of the

aggravation

and

acceleration

of the

applicant's illness by her work

are continuing to

contribute

her

incapacity

for work. Having

considered all the evidence which was before the

Tribunal, I am satisfied

a balance

probabilities that the

following consequences

the

aggravation

and

acceleration

the

applicant's mental illness hy her employment are

continuing to play

a part in that illness:-

the change in the applicant's status within

her

famlly

which has resulted from her

ceasing to bring money into the hous?;

( 2 )

the seconciary gain in the form of attention

from her

fa:nily which has

resulted from

11.

khat aggrnvation and zccelpration;

( 3 )

the €act thlt

work as an employee

was

distastrful to her

because

her

background and upbringing in Greece and she

found the aggravation and accelrration of

her illness

as a

"reason" for her being

able to avoid having to

do such work;

( 4 )

the

resentment

towards

Telecom which has

resulted first from the

actual

aggravation

and acceleration

of the illness, then from

the loss of her previous income and finally

from the

delays

which

occurred

the

result of the procedures which were

needed.

in order

for her to obtain compensation."

Consequently by virtue of the provisions

section 2 7 ( 1 ) of the Act, as read with section 29,

the respondent remains liable to pay compensatlon

to the applicant

for her total incapaclty for work

and has done

so at all times since

20 June 1983."

Telecom appealed against the decision to thls court on the following grounds:

1. The tribunal was bound to find that the respondent was not liable to pay

compensation to the respondent aEter

t'ne time

when

the

respondent'

mental

disorder

itstlf,

its

natural

progress,

would.

have

rendered her totally incapacitated

for work.

2 . Upon the tribunal finding that:-

(a) at the

date of hearing the respondent would have been totally incapacitated for work by her disease even if it had

been

not

aggcavated

and

accelerated by her employment;

and

(b) there were consequences of

the

aggravation and acceleration of

respondent's

the

mental

disorder which were contributed

to by her employment with the

applicant

and

which

were

continuing to contribute	to
that illness -

the tribunal erred in deciding that

those consequences

contributed

the

respondent's

fncapaclty

for

work.

3 .

T?IP tribunal

waz bound

to f ~ n d on

the evidence that upon the date of

the determination under review, the

respondent would

have been totally

incapacitated for work even if

her

employment with

:;he

applicant had

not contributed

to the aggravatxon

and

acceleration

of her

mental

disorder.

4. Upon

the

trihlnal

findinrs

that at

the date of ::he hearing

the

respondent would

have been totally

incapacitated €or work

her

illness, even If it had not. been aggravated and accelerated by her

employment,

the

tribunzl

misinterpreted section 5(11) and

section 2 9 of the

Compensation

(Commonwealth Government Employees)

Act 1971

deciding that if the

respondent's

mental

disorder

was

partly the result of the sequelae of the aggravation and acceleration of

the disorder, then the

aggravation

and acceleration were

to be taken to

contrlbutlng

her

present

incapacity for work.

The liability

of the Commonwealth to pay compensation

respect of Its injured employees is provided for in section

27(l) of the Act which state?:

"If personal injury arlsing out of

or in the course of

the

employment

of an employee

by the Commonwealth

caused to the

employee,

the

Commonwealth

is,

subject

this

Act, liable to

pay compensatlon in

respect of that injury in accordance

with this Act.

Sub-sectlons (1) and

( 2 ) of s . 2 9 provide:

" ( 1) rNhere-

a r employee contracts

R dlsease or

suffers an aggravation, acceleration

or recurrence of

a disease; and

any employment

of the employec by

the Commonwealth was a

contrlbuting

factor to the contraction of the

disease or to	the	aggravation,
acceleration or	recurrence, as the

case

may be, whether

not

the

disease was contracted

the

aggravation,

acceleration

recurrence

was

suffered

the

course of that employment,

the succeeding provisions of this section

havc effect.

( 2 )

If-

(a) the death of the employee;

(b) a loss to the employee

of a kind

referred to in section 39 or 40	of
this Act;

( c )

facial

disfigurement

the

employee;

( 6 ) a loss to the employee of the sense

of taste or smell; or

( e )

the total or partial incapacity

for

I	work of the employee,

results from the disease, or

from

the

aggravation, acceleration or

recurrence

of the disease, or the employee obtained

medical

treatment

relakion

the

desease, or t'ne aggravation, acceleratlon

or 'ecucrence of the disease, as ths case

may be, then, for the purposes of this

Act,

unless

the

contrary

intention

appear

S-

(f)

the contraction of the

disease, or

the aggravation,

acceleratlon

recurrence, as the

case

may

be,

shall be deemed

to be

personal

injury to the employee arising out

of the employment:

of the employee by

thc Commonwealth; and

( g ) the date of the

death, the date of

the loss, the

date

the

dis-flgurement, the

date

the

commencement of the incapacity

14.

t he date on

whick

the

medical

treatment was first obtained,

whichever is the earller, 5hall be

deemed to be the

date

the

1 u r:~

. "

Section 5(11)

of the Act,

far as

it is relevant,

provides

"For the Fur?oses of this Act-

(a)	the death, or a disfigurement, incapacity or disablement, of an

employee, or a loss suffered by an

employee, shall

taken to have

resulted from an inlury to the employee, from a disease contracted

by the

employee

from

I I

aggravation,

acceleration

recurrence of a disease suffered by

the

employee

the

injury,

the

disease Or the aggravation, acceleration or recurrence, as the case may be, contributed to the

death,

disfigurement,

incapacity,

disablement or

loss";

Section 5(1), the

deflnitionnl sub-section in the

Act,

deems the term

"diseasc" to include any physical or

mental

ailment, disorder, defect

morbid condition, whether

sudden onset or grzdual development.

Section 31(4) which, pursuant to subsection (S), is not to be construed as limiting the generality	of s . 2 9 , reads	as
:@llows:

"An incapacity for work or facial disfigurement of, or a 105s suffered by, an employee shall be taken for the

purposes of this

Act

have been

contributed to by

di.jea,-e, or by

aggravation,

acceleratlor-t or recurrence

of c discasc,

if, but f o r that

( i~scasc ,

or that aggravation,

acceleration

o r

recurrence, as the case may

be-

( 2 )

the

incapacity,

disfigurement

loss would not have occurred;

(b)

the incapacity would have commenced,

or the disfigurement

or loss would

have occurred, at

significantly

later time; or

( c )

the

estent

the

incapacity,

disfigurement or loss would have

been significantly less.."

The central submission of the applicant is based upon

the finding of the Tribunal that at the date of the relevant

enquiry before

the delegate, namely

20 June

1903 and since

that date the respondent would

have been totally incapacitated

for work by reason of the progression

her

disease of

anxiety neurosis even

if there had not been

any aggravation

and acceleration thereof by

her mployment

with Telecom in

1976. This finding was amply

~ustified

by the evidence.

It is said that in

the light of this finding it cannot

be szid that the respondent's incapacity to work in and after

June 1983 resulted frcm the acceleration or aggravation

cf the

disease sufferec! by her by reason of her employment with Telecom, notwxthstanding the further finding of the Tribunal

were

acceleration of the respondent's mental disorder caused by her

employment with Telecom which were continuing to "play a part"

in that illness. Paving regard to the context in which it was

consequences

of the

aggravation

and

that

there

made I think this finding should be understood to read that

thpse consequences have contributed	to	her	incapacity for
work.

l b .

Secklon 29 of the Act is designed to briny within

the

scope of

5 . 2 7 ,

injuries glving risc to entitlement

compensation, the

contraction, aggravation, acceleration

recurrence of

a disease to which contraction,

aqgravatil

on,

acceleration recurrence Commonwealth was a Contributing factor, if certain particular

any

employment

with

the

detriments, including total or partial incapacity for work,	!
result from the contraction of the disease or its aggravation,

acceleration or recurrence. It is

to be observed also that

long as any employment by the Commonwealth is J.

contributing

factor to the

contraction,

aggravation,

acceleration

recurrence of the disease it is

of no significance that the

contraction,

aggravation

acceleration

or recurrence

was

suffered otherwise than In the course

that employment.

(See s.29(1))

It 1 s apparent that for the contraction of

a disease

o r

its aggravation to qualify

as a personal injury arising out

the

course

the

employee's

employment

with

the

I	Commonwealth pursuant to 5.29(2)(f) that employment must be	a
factor contributing to the contraction or aggravation of the

disease: see

S. 29 ( 1

1 .

u4e

the term "aggravation" as

including acceleration or recurrence. No doubt on the proper

interpretation of

s.29(1) the employment would

be a factor

contributing to the contraction or aggravation of a disease

whether the contribution was direct or indirect. But the

employment must be a factor contributing to the disease or its

aggravation.

To my mind. the

situation contemplated

is one

where the employment operates directly OL Indirectly upon the disease itself. Also, for 2 disezse or an aggravation thereof

to qualify as

personal injury arising out

or in the

course of employment pursuant

s.23(2)(f) it is necessary

that incapacity for work shall result therefrom: see

s . 2 3 ( 2 ) .

In this case the Tribunal directly aggravated the disease, temporarily

found that

the employment

least, and

that there were certain consequences thereof. Although those

consequences were not in

the nature of the contraction or

symptom of any disease the Tribunal found that they played a

part in the respondent's illness in the sense,

I think, that

they contributed from 1933 onwards to her incapacity to

work.

It is said that these findings establish that this incapacity

to work not only resulted from the aggravation of the disease

but from aggravation to which the respondent's employment with

the Commonwealth, namely Telecom, was a conttibuting factor.

For the present I assume that this is a sound view. In that

state of affairs s.29(2)(f)

of the Act deems the aggravation

of the disease to

l;e a personal injury to %he employee arising

out of

the employment by the Commonwealth and liability is

imposed by 5 . 2 7 of

%he A c t .

Aqqravation as a cause of incapacity to work

On the

issue of the significance of the finding that

without

any

aggravation

employment

with

Telecom

the

respondent's

natural

disease

would

June 1983 have

incapacitated the respondent for

work, the finding that "it is

19. i

her present mcntzl conl-?;tlon w h l c h is incapacitating her"

I	crltlcal. Thc app'licanl: rontends	that	as the	incapacity is
I

€ully

explained

reference

the

respondent's

mental to its natural

illness

opercting

accordlng

condition

unaffected hy the effects of her employment by Telecom, there

is no

evidence that the aggravation of the illness by the

sequelae is contributing to the incapacity to work. Thus	the
burden of establishing that the respondent's incapacity to
work resulted from aggravation of the disease by any work

factor, directly or indirectly, just cannot

be carried. But

the Tribunal took the view that,

as it was the respondent's

presenl; mental condition

which was incapacitating her then,

virtue of s.5(11) and 5 . 2 9

of the Act, the aggravation and

acceleration ?-re to be taken as

contrlbuting to her present

Incapacity for work

if het- present mental conditlon

w z s partly

the result of the sequelae of the aggravation and acceleration

of her natural illness.

As to the validity

this view

it is important to

note that the incapacity must

be the result of the illness

considered as a unity. Although

the

illness woulr:

have

resulted in the same incapacity if it had not suffered an

aggravation by the specified sequelae, nevertheless, if	by the
operation or effect of the sequelae the illness has been

aggravated, and incapacity

has resulted from the Illness

aggravated, inevitably the incapacity would be the product

the present illness operating

as a whole or as a unity. It is

impossible to say that it results only from the illness

as it

would have been had there been

no aggravation. One cannot say

I I

’ ,

19.

that the incapacity was caused by any partlcular department of

the lllness in the mind

which was m its current state only

the result of the dispositions of nature or hy

a department of

the lllness caused or contributed to by the sequelae

the

process

of aggravatlng the Illness. As at 20 June 1983,

therefore, the incapacity proceeded from the state

the

illness,whlch resulted from

all the factors affecting it.

So far as human insight can probe it,

the incapacity is

the result of the dlsease as affected by the aggravation of it

the

sequelae

if there were any

such

aggravation.

Accordingly, s.5(11) plays

a part.

It provides that

aggravation of EI dlsease contributes to incapacity to work the

incapacity

shall be taken

have

resulted

from

the

aggravation. Thus, if

the

aggravation by the sequelae

contributed to the illness, (see

s.29(1)) the incapacity must

be taken to have resulted from the aggravation of the disease.

would follow

that for the

purposes

s.29(2)

the

incapacity resulted from the aggravation.

Then

s.29(2)(f)

applies with the result that the aggravation

of the disease is

deemed to be an injury

in respect of xhich by 5 . 2 7 there is a

liablllty to pay compensatlon.

It was

put

Mr. Ashley that it is important

remember that

is to be gathered from

5 . 2 9 and 5.27

that

entltlement to incapacity havlng been contributed to by the aggravatlon of

compensation

dcpcnds

upon

the

relevant

the disease and not by the dlsease

m its aggravated form. He

relled on the decision o€

the l-Iigh Court In McLauqhlin &

Co.

Pty. Limited v. Brinnand C19657 WCR

112 and particularly on

the observations of Windeyer

J. as follows:-

"It is not disputed that there

was evidence on

which the Workers' Compensation Commission could

find that the worker's malignant

disease, although

not caused by

his work, was aggravated

his

work.

The only question for us is, was

there any

evidence that his incapacity resulted from that

aggravation?

The cffect of the Workers'

Compensation

Act

(N.S.W.) since

It was amended in l960 is in my

opinion as follows. If, without any aggravatlon

or acceleration contributed to by his employment,

a worker would have become incapacitated to the

extent he was and when he

was by a disease from

which he was suffermg, then, whether or not there

was in fact

any

aggravation,

acceleratlon

exacerbatlon of the disease, his incapacity cannot

be said to result from aggravation, acceleration

or exacerbation. If, on

the

other

hand, a

wo!: ker's

disease

so zggravated by his

employment

that

causes

an incapacity

when

WithCJUt such aggravation he would have suffered no incapacity from the disease, then he is entitled

compensation.

And

i€ the

effect

the

aggravation

cause

a greater

degree

incapacity than the disease

unaggravated would

- as, for

have

done

example,

what

would

otherwise have been a partial or intermlttent incapacity becomes a total ok permanent incapacity

- he is

entitled

compensation

for

the

incapacity

actually

occurring,

for

the

result of the aggravation of hls pre-existing condition; and it is immaterial that unaggravated

he	might still have been to some lesser degree

incapacitated. If, however,

the

employment

aggravatlng

his

disease

or accelerating

Its

progress merely causes an incapacity of the

same

degree that the disease would in time have caused

but causes it earller, then it seems to me that

the resulting compensable incapacity is only that

which can be

said

to be

attributable to

the

aggravation or acceleration: that is to say it is

the incapacity from its zctual occurrence to the

time when,

hypothesi,

the disease, If not

accelerated or aggravated,

wodd

have produced

it.

S -

This last

sentence

touches

the present

case in a most

significant way.

And

the

relevant

respect

I see

distinction between the Act and the NSW provision which was

under consideration In Brinnand’s CS (supra). If the view

expressed applies to this case without qualification, then

havlng regard to the

fmding o€ the Tribunal that the natural

dlsease would in and from June 1983 have resulted in the

incapacity then suffered by the respondent, the respondent

must fail. But the essential question

that posed by

s . 2 9 ( 2 ) .

Did the incapacity from June 1983 result from the

aggravation by the sequelae in

the

sense that the sequelae

were then contributing to it? In Brinnand‘s Case (supra) the

aggravation under consideration was considered not to have

contributed to the incapaclty.

The ratio decidendi of that

case clearly aggravation contrlbuted to the incapacity.

1 s

that

there

was

evldence

that

the

It was in thst

case possible to separate the effects of the aggravation from

the effects of the injury if it were not aggravated. But in

the present case the incapacity from June 1983 was caused or

contributed to by the operatlon of

neurosis affecting

single bodily or mental entity, namely the mind. It was the operation of that single entity, as an indivisible unit,

which was causlng

the respondent to be unable to work. If

there has been aggravatlon of the illness the impairment of

the mind

which produced that result was the result of the

progress of the disease and of the aggravation. If one

considers the case of

progressive disease which will

ultlmately produce Incapacity but whlch is aggravated by some

event,

it may be that the aggravatlon merely hastens the

incapaclty and it

is reasonable to say the only incapacity

2 2 .

caused

the

event

was

that

during

the

period

acceleratlon. But an aggravation of 3. neurosis would seem to create a further impalrment of a mind already Impaired so that everything the mind does thereafter is the result of the

total

impairment.

the

event

question

was

the

employment

or a consequence

the

employment

then

the

employment was a

contributing cause

to incapacity whenever

the mlnd

so operated to induce that incapacity. It is this

notion whlch the Tribunal expressed by saying that it is

her

mental illness in its present state	which	1s causing her
incapacity.

If one contemplates

c? situation in which a disease is

temporarily

aggravated

by employment,

but

later

the

aggravation has ceased

have any effect,

that the

disease is

no worse after the zggravation and does not

progress any more swiftly because of It, but does progress to

a stage at

which

it causes incapacity, then clearly, the

employment is not a contributlng factor in the

mcapaclty.

But If,

after the cessation of the direct effects

the

aggravation,

the

disease,

being

a neuros~s, 1s again

aggravated, or made worse, by some event, and operates to

incapacitate the sufferer for work, then the concluslon

which

I feel is inevitable is that the incapacity is contributed

by that later aggravation

well as the natural disease.

Thls 1 s because of the nature of

the

disease.

It does not

operate by mental departments. If aggravated it is

the whole

of that slngle entity, the

mind, whlch in its ultimately

impalred condition operates to produce the incapacity. That

7 .

2 3 .

must be sufflcient to satisfy

s . 2 9 ( 2 ) of the Act.

Aqsravatlon of the Disease

But there is

E? serious qljestion whether, in the declsion

of the Tribunal, there is a finding that any of the sequelae

dld constitute a factor contributing	t o the aggravatlon of the
dlsease.

The Tribunal found that in June

1983 the respondent was

totally incapacitated

learned Deputy President found that whether or not her natural

anxiety neurosls had been aggravated by the employment with

for

work.

indicated

above,

the

Telecom she would

in June 1983 hsve been totally incapacltated

for work. He had no doubt that that incapacity was the result

of a mental illness from which she had been suffering since

1972. He said: -

I' ... The only issue which remains for decision is

whether the aggravation and acceleration of the

mental illness by her employment by Telecom has

continued, and is continuing, to contribute to the

causation of that incapaclty.

6. The

evldence

before

the

Tribunal

has

established beyond doubt that

the applicant is,

and has been slnce at least

1972, suffering from a

mentzl illness which is the prlncip?-l cause of her

incapaclty.

That illness was not caused

by her

cmployrnent. However, the effect of sectlon 5(11) of the Act 1 s that, for so lonq as any aggravatlon

or acceleration of

the illness by her employment

contrlbutes

causing

the

incapacity,

the

incapaclty is to be taken to

be the result of the

aggravation

acceleration.

The deqree of

contribution need not be

high; it need be only of

sufficient significance that it can truly be sald

to hc contributing to the incapaclty."

24.

The Deputy President pointed out that the question wrls whether the respondent's illness was

and since June

1983

wholly the origlnal illness unaffected by the aggravation by

work or Included as part of it a continuing hysterical

reaction to that aggravation. After constdering the opinions

of the indlvidual witnesses

he said:-

" . _ . However.

all of

them

accepted that such

sequelae could produce a reaction - although it

was not clear whether

all of them limited that to

a hysterical reaction

and that that reaction

could contribute to

a continuing incapacity long

after the initial Injury, disease,

agq-avation or

acceleration had ceased to do so directly."

He added:-

Mr. Casey

Initially

submitted

that the

applicant's employment could not

be said to be

contributing to

her present incapacity for work

unless the actual stresses

of that employment were

still

themselves

effective

doing

50.

Subsequently, however, he conceded (rightly in my view) that it would be contributing to it if the

consequences of the

aggravation and acceleratlon

were now contributing

to her incapacity."

The expression "it" where first used in

this passage refers to

her 1976 employment with the Tribunal and where secondly used

refers to the respondent's incapacity to work in 1983 and

onwards.

I would interpret this concession

as intended as an

acknowledgement that providing

that the consequences of

the

orlginal aggravation operated to aggravate the illness then

the employment would be contributing to the incapacity if the

consequences of the aggravation were now contributlng to her

Incapacity.

The Tribunal added:

25.

"I accept the evldence of those three psychiatrists

that the applicant would

by now have been totally

lncapacitated by her Illness even

If It hzd

not

been aggravated and accelerated by her employment. which is incapacitatlng her and, If that condition

the aggravation and acceleration of the Illness, then

result

the

sequelae

the

partly

by virtue of the provisions of sections

5(11) and

29 of the

Act, the aggravation and acceleration

are to be taken to be contrlbuting to	her present
incapacity for work."

In the light of those observations

It would have been

natural to "present" mental condition

treat

the

essential

enquiry,

whether

the

of	the respondent was the result,

partially at least, of the operation upon the respondent's

rieurosis of the specified sequelae. In the application of the

observations, an

affirmative answer to that question would

have solved the issue

of of the "present" mental

liability. Clearly the incapacity

was

the

result therefore that present mental condition was the result of the

condltion.

operation on the neurosls of the sequelae the case

for

the

respondent was complete. But It

vas not complete if there was

an	affirmative answer merely to the question whether the

sequelae contributed to the incapacity. Such an answer would

leave open the questlon of aggravation of the neurosis by the

sequelae. Yet suggesting that an answer

there

much

the

Tribunal's

reasoning

to the latter

question

would

determme the issue.

The observations at the commencement of

this portion of discussion wlth Mr. Casey mentioned above and what appears to

these reasons, and those relating to the

be the final summa.tion of the critical question

are In point.

s6.

The absence from

the 5tatemer.t of

the reasons of

the

Tribunal

of a finding

that

the

sequelae

aggravated

the

lllncss reinforces the point. The inference that the Tribunal acted on the vlew that it was sufficlent for the respondent to establish that the sequelae contributed to the incapacity to

work arises and

ga.thers

strength with each reading of

the

reasons. One finds

the final reference

the

Deputy

President to what

he appears to consider the critical question

to be, a statement that he was better placed than the medical

witnesses to determine whether the sequelae of the aggravation

of the respondent's illness by

her

work was continuing to

contrlbute

her

incapacity

for work.

The

immediately

following and ultlmate findmg of the Tribunal was that he was satisfied that the specified consequences of the aggravation of the respondent's mental illness by her employment were at

the relevant time contlnuing

"to play a part" in that illness.

From its context

I think, as indicated above, that these words

are to be understood

as a finding, not that the consequences,

namely, the illness, but that they had contrlbuted to the respondent's

sequelae,

had

contributed

aggravating

the

incapacity, in and after June

1983,

to work.

The

necesslty

for the sequelae to contribute to

aggravation of

the

respondent's illness is not mentloned. But in the absence of

a finding that the

sequelae contributed to aggravating

the

illness an element necessary to

establish Telecom's liabillty

June

sequelae contributed to make the illness worse than it would

otherwise have been. I€, by finding that "it played a part"

1983 was lacking.

That element was that

the

2 7 .

In the respondent's

illness

meant

that

the

sequelae

contrlbuted to

her incapacity that

contribution

could have

taken effect in one of two ways,

first,

if the sequelae

aggravated the disease; and secondly,

if the sequelae provided

a focal circumstance which did not make the illness worse but

provided a point of reference to which

her mentality impaired

by her old illness, not aggravated In any way by the sequelae,

related and operated so as to contribute to the incapacity	of
the respondent for work.

In this latter case, although the old illness would have incapacitated the respondent,

the

focus

circumstances

provided by the sequelae

would, in a sense, have played a part

in that illness.

It may

not have made the illness worse but

have contributed to the incapacity by providing

a reason or

incentive factor by reference to which

her impaired mental

condition, her illness, operated to incapacitate her

for work.

If by played a part in the respondent's mental illness the Tribunal

his

fmding

that the

four specified sequelae

meant no more thzn that in the course

the respondent's

natural illness the mind noted the situations described in the

sequelae

and,

according

its

naturally

impaired

mental

process, developed a

desire that the

situation in items two

and three should contlnue indefinitely or a desire to punish then it could not be sald that any of the sequelae were

factors whhlch

contributed to cause

an aggravation of the

natural illness.

They constltuted a reason for action by the

Impaired mint: but did not cause it.

I I

Were the sequelae consequences of the emplo-

If the Tribunal meant that the sequelae aggravated the

respondent's neurosis and that her mental condition was by

reason of the sequelae made worse than it otherwise would have

been, that concluslon must have been reached by the adoption

of some such notion as that the specified sequelae caused the

respondent's mind to develop

a desire to maintaln

her illness

so that the benefits described in items two and three

of the

sequelae would described in items one and

perpetuated

and

the

dlssatisfactions

four of

the sequelae would

vmdicated and to implement these desires

by some conscious or

subconscious mental process whereby the existing neurosis was

aggravated.

The sequelae in themselves were mere circumstances

independent fact not of

health. The sequelae were but Inert

consequences of the aggravation by Telecom of her illness, the

award of compensation and the litlgation

to obtain the award.

I have

difficulty

appreciating

that as a matter

inference one could conclude that the sequelae caused the

neurosis to become worse rather than that the respondent's

already impaired mind saw the facts described in the sequelae

and rcacted to them because

it was impaired.

Until the respondent's mlnd operated, consciously or

subconsciously,

in some wzy. such as, to

say

the

respondent:

"Pay

without

work

and

family

attention

are

desirable -

I will lose the pay and perhaps the attention

unless I have a good excuse

for not working, therefore

neurosis must make me unable to work", the sequelae were non

significant to her illness.

It is going

a long way, however,

to say that because

the aggravatlon of her neurosis had enabled

her temporarily at

least to further to aggravate her neurosis.

paid

without

working,

that

fact

contributed

A s

Windeyer

said in

Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 CLR 626 at

640, when the Commonwealth as a contributing factor to aggravation

statute

speaks

any

employment

the

of a

disease it refers not to the fact

of employment but to what

the worker in fact does in his employment. Did what the

respondent did in thls employment sggravate her illness?

is said that

loss of status at home aggravated the illness.

was Nevertheless if something that happens at work

not

something

that

happened

at work.

But

that

has a certain

result which c.au5es

a subseqlxnt event then

it may be said

that

what

happcned

work

caused

that

result.

But

ultimate

result

which

was

too

remote

from the original

happening will be said to

not caused by it.

Thus

the

problem is one of causation.

The manner in which the part thought by the Tribunal

he played by the

sequelae in the respondent's illness is not

specified and is quite unclear.

Items two and three

the

specifled

sequelae

were

items

satisfaction

the

L ' .

30.

respondent and would hardly have been irritants. There is no

gulde as to the significance that might have been attached to

item one. It might have tended to influence the respondent to

get

well.

The fourth item is subject

observations

hereunder.

The truth 1s that it is impossible to treat any possible

in~ury

to the respondent's neurosis caused by loss of family

esteem as including what occurred In that employment.

having

been

contributed

the

employment

The	employment

caused the respondent to stop

work.

Her ceasing to work is

said to apparently she succeeded

have

caused

loss of family esteem

even

though

obtaining

an award of

my employment and the aggravation of the neurosis breaks down at

opinion

the

connection

between

the

compensation.

the intermediate step.

The

loss of esteem was due to events

of a different order from events contributed by the employment

and Its incidents. It arose

from the personal attitudes of

the family to legal situations which had

arisen from

the

employment.

Those

attitudes

were

not

contributed

to by

Telecom.

1 s also impossible to treat the secondary gain

referred

sequelae

Nos. 2 and 3 as

having

been

contributed to by the employment. The Telecom employment dld not cause the family to glve the added attention t o the

respondent for her condition as it

resulted

from

the

aggravation of her

neurosis, or to cause satisfaction

at being

a lady wlth leisure and an income.

The former was the result

of the personal attitudes and reactions of the family to the

facts. The latter was the result of a personal predllection

31.

I	of t :he respondent in re	:latlon to the same facts. The desire
I
I
I
I

on the part of the respondent to retain that attention or her

comfortable leisure was not caused by Telecom. They again

concerned events of a different order from events contrlbuted

to by the employment and its incidents.

A s to the fourth sequelae, resentment,

I agree with the

observations of Sweeney and Woodward JJ. in their reasons for

judgment hereln. Were it not that

decision based on the

possibility

that

resentment

resulted

from

the

events

Telecom in 1976

2nd was a contributing cause of aggravation

the respondent's neurosis as at June

1983, I would consider

that this appeal should be allowed and the award terminated.

It is a serious question whether resentment ever played

a part

in the development

of the respondent's neurosis

and whether as

at June 1983 it continued to have any effect in respect

thereof.

The onus

of proof that the employment

had

then

ceased to have effect as an aggravation

of the respondent's

ncurosis

on the

applicant.

See

Phillips

The

Commonwealth (1364) 110 CLR 347, Commonwealth of Australia v. Muratore (1976) 12 ALR 543. The applicant has proved that the

events at Telecom In 1976 had, by

June 1983, ceased to have

direct effect satisfied the Tribunal that, without aggravation of any kind,

upon

the

respondent's

neurosis.

It has

thc respondent would, because of

her

neurosis, have

been

unable to work as from

June 1983. The original award was made

on the basls that noises and strict dlscipline in the workshop

had at that time so aggravated the respondent's neurosis that

she was incapacitated for work.

The findlng of the Tribunal

is that in June 1983 the direct effects of the employment did

not

play

any There is no existing ~udicial

part

the respondent’s

illness or mcapaclty.

finding that the sequelae ever

played any such part. That they did

s o , as an indirect effect

of the employment at Telecom is

a matter depending

on the

evidence before the Trlbunal. There are no objective criteria

which lndlcate that resentment of the events

at Telecom In

1976 aggravated the respondent’s

neurosis.

Unless

there

were

qualified medical evidence that such resentment existed and

that it was caused by the

1976 events at Telecom and that, as

distinct from being

mere manifestation of

the

natural

neurosis or the working

of any mind in the

face of mlsfortune,

it aggravated the neurosis in

relevant way and at the

relevant time there would be nothing to support an inference

that resentment aggravated the respondent’s neurosis. In such

I	case, in	view	of the findings already made as to the effect of
I
!
I

the illness as at the relevant time, the appllcant would have

satisfied

the

onus

upon

it.

not find in the reasons of the Tribunal any

I	attention	given	to	these	problems.	For the	Tribunal	to	take,
I

largely

upon

himself,

the

task

assessmg the mental

processes which might have flowed from any of the sequelae was

a hold step. But if that were to

done it could only

done safely if all the relevant factors and possibilities

were

considered. Neither in the reasons

for decision nor in the

evldence does one find

a specific examlnatlon of the question

whether the impaired

mind

of the

respondent

operated

reference to a sequelae rather than that the sequelae caused

, l

3 3

further impairment.

Having

regard

the

foregoing it

is my opinlon

that

the

appeal should

allowed and the matter returned

the

Tribunal for further conslderation in accordance wlth the ohservations herein.

I agree with the order proposed

in the joint reasons for

judgment herein

of my brothers Sweeney and Woodward

JJ.

I certlfy that this and the

preceding thirty two

(32)

pages are a true copy of the

Reasons for Judgment of his

Honour Mr. Justice Smithers.

Associate

Date: 13 August 1985

J .

No.

V G

335 of

1 9 8 4

BETWEEN:

T h l s is

a n

s p p e s l

f r o m

d e c i s i o n

( ' t h e

d e c i s i o n ' )

o f

d e p u t y

p r e s i d e n t

Lhe

Administrative

A p p e x l s

T r l b u n s l

( ' t h e

Tribunal')

t o s e t

3 s l d e a

d e t e r n l i n a t i o n of

t h e

d e l e g a t e

t h e

C o a m l s s l o n e r

for

E m p l o y e e s '

Compensation

( " t h e d e t e r e l n s t l o n n )

snd

remit

t h e

m a t t e r

t o

t h e

C o r n m i s s l o n e r

f o r

r e c o n s l d e r a t l o n ,

w l t h

t h e

a p p l l c s r l t

( 'Telecorn')

t o p s y

t h e

r e s p o n d e n t ' s

c o s t s .

T h e

d e l e g s t e

o n 20

Ji.lne

l9e3 d e t e r m i n e d

t h s t

a r ty

1ncapqc l i . y

f o r

w o r k

w h l c h

t h e

r e s p o n d e n t

m l g h t

h 3 v e

t h e r e a f t e r

wss

n o t

t h e

r e s u l t

o f

t h e

a g g r a v a t i o n

2 n d

~ c c e l c r ~ t l o n

p s y c h o n e u r o s i s

h c r

b y

h e r

i	e m p l o y m e n t	a n d s c c o r d a n c e	t h a t	c o n s e q u e n t l y	T e l e c o m	was	n o t	l l a h l e	t o	p a y	he r
i i

c o m p e n s s t ~ o n

I n

w 1 th

t h e provisions

t h e

C o m D e n s a t i o f i

iCpn\rnp~~$cal$h-

fiipv-ery~m-ent E-mpjpyyCes)

Rc-t

1 9 7 1

( ' t h e

Act' )

re spec t

o f

s n y

~ n c a p a c l t y

f o r

work.

s u f f c r e d b y

t h e

r e s p o n d e n t

or1

a n d f r o m t r e a t m e n t

t h e u n d e r g o n e

nciste

d e t e r m l n 3 t l o r 1 ,

I n r e s p e c t

s n y

m e d i c a l

b y

t h e

r e s p o n d e n t

o n

s n d

f r o m

t h a t

d a t e .

T h e

m a t t e r

was

r e n l l t t e d

t h e

C o m n \ l s s l o n e r

t o

tny

t h e

T r i h u n a l

for

r e c o n s i d e r a t i o n

i n

a c c o r d s r l c e

w i t h

express

d i r e c t i o n

t h a t

t h e

r e s p o n d e n t

h a d

a t

a l l

times

s l n c e 2 0

J u n e

1 9 8 3

( w h i c h

m l s t a P e n l y

a p p e a r s a s 20

June 1 9 2 1 ~n

t h e

t y p e d

d c c l s i o n )

r e m a i n e d

t o t s l l y

i n c s p s c l t s t e d

f o r

work

ancl t h a t the s a i d

t o t a l

i n c s p s c l t y

for work,

h a d

c o n t l r l u e d

t o

b e

t h e r e s u l t of

t h e

p e r s o n a l

i n J 1 u r y

s p e c l € l e d

i n

J e t e r n \ l n a t i o n o f

d e l e g a t e

t h e Commissioner

d a t e d 9

J u n e

1981

( ' t h c

e 3 r l i e r

d e t e r m i n a t i o n ' ) .

T h e

p e r s o n a l

i n ~ l u r y

s o

s p e c i f l e d was	t h e	a g g r a v a t i o n	srlrl	a c c e l e r a t l o n o€	t h e	d l s e a s e	o f
p s y c h o n e u r o s i s .

The

respondent w3s

40 y e a r s

o l d

a t

t h e

d a t e

o f

t h e

decision.

S h e

now

4 1 y e a r s o l d .

She was

b o r n

i n

Frcece

and

was

m a r r i e d

t h e r e

a t t h e a g e

o f

1 G .

S h e

3 r r i v e d

1rl

Aclstrslls

1 7 November

19GG

t o g e t h e r

w i t h h e r

h u s b 3 n d

snd

two

children.

The

r e s p o n d e n t

W B S

n o t

i n

c m p l o y m e n t

l r ,

G r e e c e ,

but

a f t e r

coming

t o

A u s t r s l l a

s h e

was

e m p l o y e d

1rl a

number

o f

J O ~ S .

1971

s h e

s t a r t e d

w o r k i n g

€or

t h e C o m m o n w e a l t h

I n

t h e

P o s t m a s t e r - G e n e r a l ' s

Department.

After

t h e

A u s t r a l i a n

T e l e c o m m u n ~ c s t l o n s

C o m m l s s l o n

w a s

e s t a b l i s h e d

i n

1975 she c o n t i n u e d

w i t h

t h e

s3me

w o r k ,

b u t

was

t h e n c e f o r t h

e m p l o y e d

b y

T e l e c o m .

Her

Job

r n c l u d e d

s e v e r a l

t y p e s

a f

l l g h t

f a c t o r y

work.

M 2 r c h

1 9 7 6

s h e

w a s

w o r P i n 3

o n

3 .

p a l t e r n - m a k i n g

m a c h l n e .

A r l o t h c r

nduty

she h a d was

t o mske t e a

f o r

t h e

o t h e r

e m p l o y e e s .

A t

11.50

3.m.

o n

2G M a r c h .

s h e s t a r t e d

s t o p p e d

w o r k i n g

o n

t h e

m a c h i n e

o r d e r

t o mske

t e a .

S h e

h a d

p r e p s r s t i o n s f o r

d o l n g

s o

whcn,

s s

s h e

n d e s c r i b e d

I t ,

s h e

f e l t

p a l p i t a t i o n s ,

buzzing

noise

i n s i d e

h c r

b r a i n

a n d

h e r

e a r s ,

and

h e r

l e g s

f e l t weak

t h a t

s h e

c o l h p s e d

t o

t h e

floor.

S h e

w a s

a s s l s t e d

u p s t a i r s

w h e r e

n u r s i n g

s l s t e r

a t t e n d e d

h e r

a n d t o h o s p l t s l .

s h e

r e s t e d f o r

s b o u t two

h o u r s .

Aftcr

t h 3 t d c s c r l h e d

s h e

w a s

t a k e n

S h e

h a s

v l r t u 2 l l y

n o t

workcd

s i n c e .

S h e

t h e

n 2 t u r e

of'

t h e

i r l J u r y

o r

d i s e a s e

31~11-13

rise t o

h e r

i n c a p s c l t y

3 s

' n e r v o ~ ~ s

condition - c a u s e d

tty

n o i s e

a t

w o r k s h o p s '

2 n d

d e c l s r e d

t h 3 t

t h e

'noise

b e c s m e

o p p r e s s l v e ' ,

r e s u l t i n 3

1 r 1

h e r

condition.

S h e

s t a t e d

t h s t

t h e

s y m p t o m s

f i r s t

h e c s n l e

a p p a r e n t

t lecenlher

1975.

B y

t h e

time t h e

c s se

h s d

co~ne b e r o r e

t h e

Tribunal,

h o v e v e r ,

was

s c c e p t e d by

b o t h

p a r t l e s

t h a t

L h e

r e s p o n d e n t

h a d

s u f f e r c d

f r o m

m e n t a l

i l l n e s s

s ~ n c e

a t C o r n m i s s l o n e r ' s

l e a s t

1971. d e l e g a t e

After

c o n s i d e r a t i o n

v a r l o u s

m e d l c a l

r e p o r t s ,

t h e

a c c e p t e d

t h e

o p l n l o r l

o f

Dr.

A .

S l n c l a l r ,

t h e

m e d l c a l

r e f e r c e

appointed

t o

t h e

c a s e ,

t h a t

t h e

r e s p o n d e n t

s u f f e r e d

f r o m

l o n g

s t a n d i n g

c h r o n i c

p s y c h o n e u r o s i s

t o

w h l c h

h e r

e m p l o y m e n t

w a s

n o t

c o n t r ~ h ~ ~ t i n ~

f a c t o r .

t h i s b a s i s

t h e

r e s p o n d e n t ' s

c l a l m

for compensation was

r e J e c t e d by

d e t e r m i n a t l o n

d a t e d

3 Novenlher

1978.

I	T h e	r e s p o n d e n t	a p p e a l e d	t h e	f o r m e r	t o	C o m m o n w e a l t h
I

i	E m p l o y e e s '	C o m p c n s a t i o n	Tritaunal	( ' t h e	C o m p e n s s t i o n	T r l b u n s l ' ) ,
I

w h o s e

d e c i s j o n

o f

J u l y

1 9 2 0

W ~ S

t o

a f f i r m

t h e

d e t e r m l n a t i o n

I	3	I4ovember	1978.	Two	p s y c h i a t r i s t s ,	Dr.	N .	P a r k e r	and
I

I	IJr ,,	P .	Cohpn,	wcre c a l l e d	b y t h e	r e s p o n d c n t	a n d	Dr.	S i n c l a i r	was
I

c a l l e d h y

Te lecom

t h c h e a r i n g

b e f o r e

t h e

C o m p e n s a t l o n

T r l b u n a l .

Twenty

m o n t h s

p a s s e d .

O n

November

1982

t h e

, r

r e s p o n d e n t

bias

e x a m i n e d

a f r e s h

try

psychiatrist,

Dr.

G .

C o n r o n .

I	T h i s	e x s m l n a t l o n	w a s	a r r a n g e d	b y	T e l e c o m	a n d	a s a	r e s u l t	of	t h e
I

o p l n l o n

3 i v e n

Dr.

C o n r o n

t h e

d e t e r m l n a t i o n

w a s

made

J u n e

1983

a g a i n s t

t h e

r e s p o n d e n t .

T h e

r e s p o n d e n t

3 c ~ s i n

a p p e a l e d ,

t h l s

time t o

t h e

T r i b u n s l

( n o w

s e i z e d

o f

t h e

power

f o r m e r l y

v e s t e d

I n

t h e Compensation

T r i b u n a l ) .

T h e

T r l b u n 3 l

h a d

t h e

tmenef l t

o f

l a r g e n u m b e r d e t e r n i l n s t l o n ,

o f

m c d i c 3 1

r e p o r t s ,

sonle

o f

r r h i c h

p o s t - d a t e d

t h e

t e n d e r e d

b y

b o t h

p a r t i e s .

O r a l

e v i d e n c e

was

a d d u c e d

f r o m

t h e

m e d i c a l

e x p e r t s .

t h e

h e 3 r l n g ,

c o u n s e l

f o r

T e l c c o m

addressed

the

T r l b u n a l

o n

t h e

h a s i s

t h a t

t h e

r e s p o n d e n t

h a d

remalnecl

t o t a l l y

i n c a p a c i t 3 t e d

f o r

w o r k .

T h e

' o n l y

issue'

s a i d

t o

reniain f o r d e c i s i o n in

t h e

c l r c u m s t a n c e s

w a s

' w h e t h e r

t h e

a g g r 3 v a t i o n

2 n d

a c c e l e r a t i o n

o f

t h e

m e n t a l

illnes-,

( t h e

r e s p o n d e n t ' s )

e n i p l o y m e n t

tny

T e l e c o m

c o n t i n u e d ,

h a s

a n d

c o n t l n u l n g ,

t o CCIrltr lhlJte

t o t h e c a u s a t l o n

t h a t

1 n c a p 3 c 1

t y . '

T h e

r e s p o n d e n t

g a v e

e v i d e n c e

b e f o r e

t h e

T r i b u n a l

t h a t

i n

r ecen t

ye3rs

s h e

h a d

' f e l t

v e r y

bad'

a n d

t h a t

a t

no time

h a d

s h e

f e l t a n y

b e t t e r

t h a n

In 197G or 1378.

S h e

s u € f e r e d

f r o m

n o l s e s

1rl

h e r

ears,

p a r t i c u l a r l y

t h e

l e f t

o n e ,

a n d

e s p e c i a l l y

a t

n l g h t .

They

k e p t h e r

a w a k e .

S h e

a l s o

s u f f e r e d

f r o m

p a l p i t a t i o n s

o f

t h e

h e a r t ,

a g a i n

p r i n c l p a l l y

a t n i g h t .

S h e

h a d

p a l n s

i n

v a r i o u s

p a r t s of

her

b o d y ,

t o

t h e

e x t e n t

t h 3 t

I n a l l e v l a t e d

F e b r u a r y

1 9 8 4

s h e

h a d

u n d e r g o n e

h y s t e r e c t o m y ;

b u t

h a d

n o t

t h e

p a i n s .

T h e d o c t o r s

who

g a v e

e v i d e n c e

considered

t h i s

o p e r 2 t l o n

n o t

t o

h s v e b e e n or1 3 number

J u s t i f i e d

o n occasions.

a n y

o r g s n l c

k n a s ~ s .

S h e

h 3 d

t r i e d

t o

work

o f

In 1981 s h e

h a d

a s s i s t e d

he r

h u s b a n d

1rl

c o f f e e

l o u n g e

b u s i n e s s

w h l c h

h e

r a n for

s h o r t

p e r i o d

w i t h

h i s

c o u s i n

taut

her

a s s l s t e n c e

h a d

b e c r l

l l n l l t c d

t o

s h o u t

a n

h o u r

d a y ;

s h e

5 3 1 6

t h s t

s h e

h a d

w o r k e d

t h e r e

m o r e

for

t h c p u r p o s e

o f

g e t t i n g

o u t

o f

h e r home

and

mi:: ing

w i t h

o t h e r

p e o p l e

t h a n

f o r

t h e

v s l u e

I	t h e	a s s i s t a n c e	w h l c h	s h e w3s	g i v i n g .
I
i

I n

1 9 8 3 ,

s h e

s a i d ,

s h e

h a d

o b t a i n e d

t h r e e

Jobs ,

o n e

s a n d w i c h

Lar,

a n o t h e r

i n

c o f f e e

l o u n g e

a n d

t h e

t h l r d

s e l l l r l g

c l o L h e s

o n e

d s y a

week

sb a nlsrket.

I n

o n e

s h e

h a d

w o r k e d

f o u r

h o u r s a

dsy b u t

h a d

b e e n

s a c k e d

s t

t h e

e n d

of a

week.

I n

a n o t h e r

s h e had

b e e n

s a c k e d

a f t e r

t w o

njsys

b e c a u s e

s h e

hsld

b e e n

I u n s b l e

t o

d o

t h e

w o r k

r e q u i r e d

o f

h e r .

T h e t h i r d J D ~ ,

s h e s a i d ,

h a d

l a s t e d

f o r

o n l y

a b o u t

t h r e e

weeks

a n d

s h e

h s d

b e e n

s s c k e d

from

t h 3 t

s l s o .

Wlille

s h e

w o r k i n g

a t

t h e

s a n d w i c h

t#sr , t w o

c u s t o m e r s

h a d

c o m e

t h e r e

w e a r i n g

t h e

T e l e c o n l

u n i f o r m

t h a t

s h e used t o wear;

s h e

h s d

r e c o g n i z e d

t h e m

a n d

h a d

b e e n

a f r s l d

t h 3 t

t h e y

w o u l d

r e c o g n i z e

h e r

a n d

t e l l

her

e m p l o y e r

t h a t

s h e

wss lworking

again.

S h e

h a d

f e l t

i l l whcn

s h e ssw

t h e m .

O n o n e

o c c a s i o n

when

s h e was

o n

t h e

way

tram t o

a t t e n d

3rl

E n g l i s h

l a n g u s g e

c o u r s e

s h e

p a s s e d

t h e

T e l e c o n l

p r e m i s e s

a t w h i c h

s h e

h a d

worlred;

w h e n

s h e

h s d

s e e n

t h e m ,

s h e

h a d

f e l t 111.

S h e s a i d t h a t

many

o f

t h e

n o i s e s

h e r

e a r s

reminded

h e r

t h c

s o u n d s

m a c h i n e r y

s t

Teleconl .

The

Tribl . lnal

was

c o n f r o n t e d

w i t h

d i v e r g e n c e

m e d l c s l

o p i n i o n .

Dr.

C o n r o n ’ s

r e p o r t

s u g g e s t e d

t h s t

t h e

r e s p o n d e n t

h s d

r e m a l n e d

t o t a l l y

i n c a p s c i t a t e d

f o r

w o r k

b e c a u s e

o f

n e u r o s i s ,

b u t

I	t h a t	h e r	c u r r e n t	i n c a p a c i t y	r e s u l t c d	n a t u r s l	f r o m	t h e
I

d e t e r i o r s t l o n

o f

he r

m e n t a l

c o n d l t l o r l

a n d

c o u l d

n o t ,

s t

t h i s

s t a g e ,

3 t t r i b u t c d

t o

s n y

a g g r s v s t i o n

~ c c e l e r a t i o n

of i t

h e r

e n l p l o y r n c n t ,

c o n c l u s r o n

w h i c h

h e

a n l p l i f i e d

i n

t h e

c o u r s e

h i s

e v i d e n c e .

I	He	s a i d	t h 3 t	i t	was	c l e s r	t h a t s h e	b e e n	h a d	suffering
I

f rom

sn : : le ty

n e u r o s i s

a n d

d e p r e s s l o n

€ o r

s o m e

y e a r s

he fa re

M3rch

19715

r-rld

t h a t h e r condition

h 3 4

b e e n

s t e 3 d i l y

d e t c r i o r a t i n g .

E v e n

i f

i t

h s d

n o t

b e e n

3 g g r x v a t e d

o r

3 c c e l e r 3 t e d

b y

t h e

employn1ent

f s c t o r s ,

i t

w o u l d

h a v e

c n n t i n u e d

t o

d e t e r i o r 2 t e

3 n d

t h e

p r e s e n t

s t a r j e

o f

h e r

i l lness

w o u l d

h a v e

b e c n

re3ched

r e s u l t

o f

t h 3 t

c o n l i n u ~ n g

d e t e r i o r 2 t l o r 1 ,

i n

his v i e w

w i t h i n

t w o

y e a r s

3 € t e r

1 9 7 6

a n d

c e r t a i n l y

b y

June

1963.

S h e

wxs

i n c a p a c l t s t e d

now

h e r

menta l

i l l n e s s ,

t h e

p r e s e n t

s t s t e o f

w h i c h

wss

n o t illness

c o n t r i b u t e d

t o

b y

e m p l o y n l c n t

f s c t o r s .

T h e y

h s d

e x 3 c e r b s t e d

t h e

f o r

some

time hut. t h e

n 3 t u r a l

w o r s e n i n g

t h e

i l l n e s s

h a d

o v e r t a k ~ e n

t h a t

e x s c e r b 3 t l o n

well

before

J u n e

1963.

Ur.

P 3 r k e r ,

who

e x a m i n e d

t h e

r e s p o n d e n t

t h r c e

t imes

b e t w e e r l

J u l y

1 9 7 9

2 n d

A p r l l

1 9 8 4 ,

w r o t e

r e p o r t ~n

Msrch

1963

s g r e e l n g

w i t h

Dr.

C o n r o n

t h s t

t h e

r e s p o n d e n t ' s

p e r s i s t l n g

n e u r o t l c

symptonls were

n o t

s t t r i b u t a b l e

t o

3 n y

s t r e s s e x p e r i e n c e d

t h e

r e s p o n d e n t ' s

e m p l o y m e n t .

I i o u e v e r ,

m o d i f l e d

t h i s

v i e w

i n

A p r i l

19L34

s t a t l r l g

t h a t t h e r e s p o n d e n t

continued

t o be a f f e c t e d

b y

h e r

e : : p e r i e n c e

T e l e c o m .

a t

A t

t h e

T r l b u n a l

h e a r l n g

h e

g s v e

e v l d e n c e

t h a t ,

s l t h o u g h

t h e r e

W ~ S

n o

l o n g e r

a n y

e m p l o y m e n t

s t r e s s ,

t h e memory

o f

h e r

e m p l o y m e n t

e x p e r i c n c e

w a s

c o n t r i b u t i n g

t o

h e r

I	current	c o n d i t i o n ,	e x e c e r b a t e d	b	y	t h e	l i t l g x t i o n	p r o c e s s .
I

Dr.

A .

G o u r a s ,

o n e

o f

t h e

r e s p o n d e n t ' s

t r e a t i n g

g e n e r a l

p r s c t l t i o n e r s ,

e x p r e s s e d

t h e o p i n i o n

t h 3 t

t h e

s t r e s s e s

a t

work

w h i c h

h s d

a g g r s v s t e d

a n d

a c c e l e r a t e d

t h e

r c s p o n d e n t ' s

mental

illness

were

c o n t l n u l n g

t o

h a v e

o n g o i n g

e f f e c t ,

n o t

d i r e c t l y

b u t

t h r o u g h

t h e l r

s e q u e l a e .

Examples

t h o s e

s e q u e l a e

were

t h e

r e s p o n d e n t ' s

q u a l l f l c a t l o n

f o r

t h e

€ t r s t

tiloe

f o r

workers'

I I

c o m p e n s a t i o n

s o c ~ a l

s e c u r i t y

b e n e f i t s

a n d

t h e

e f E e c t

o f

h e r

l n c a p a c i t y

o n

b o t h

t h e

f a m i l y

l n c o n l e

a n d

t h e

r e s p o n d e n t ' s

s t a t u s

w i L h ~ n

t h c

f a m i l y .

T h e

s e q u e l a e

were,

Gouras '

o p l n l o n ,

c o n l l n u i n g

a f f e c t

t o

h e r

p r e s e n t

c o n d i t i o n

a n d ,

h e n c e ,

her

c s p a c l t y

f o r

e n l p l o y e e n t .

Dr.

P . r e s p o n d e n t

C o h e n ,

o n e

of T e l e c o m ' s

m e d i c a l

witncsscs,

t h o u g h t

i t

l ~ k e l y

t h e

h a d

n e v e r

r e a l l y

w a n t e d

t o

work and t h a t

t h e r e

was

a n

e l e s e n t

o f

s e c o n d a r y

3a1n

1rl

t ~ e ~ r ~ g

! u n a b l e

t o

d o

s o ,

w h l c h 3 c c e l e r s t i o n

Dr.

Coher l

conceded

mlgh t

I t s e l f

b e

s e e n

3 s

s e q u c l

o f

t h e

a g g r a v a t i o n

t h e

nier l ta l

l l l n e s s s t i l l

c o n t l n u l n g

t o

h 2 v e

a n

e f f e c t .

T h e

T r i b u r l a l

s a l d

o f

t h e

o p l n l o n s

e x p r e s s e d

b y

Dr.

Corlrdn, Llr. Cohen

and

Dr.

S i s e ,

who

e x a m i n e d

t h e

r e s p o n d e n t

b e h a l f

T e l e c o a :

' I

a c c e p t t h e e v l d e n c e a € t h o s e t h r e e

psychiatrists

t h a t

t h e

a p p l l c 3 n t

would

by now h a v e

b e e n

t o t s l l y

l n c a p a c l t a t e d by

h e r

~ l l n e s s

e v e n

i f

I t h a d

n o t

b e e n

a g g r a v a t e d

a n d

a c c e l e r a t e d

b y

h e r

e m p l o y m e n t ' .

E a r l i e r

t h e Tribunal

h a d

s a l d of

t h e f a c t o r s

w h l c h

h a d

l e d

t h e

C o u r t

~ i - 1

l 9 8 1

t o

f i n d

' a g g r a v a t i o n

a n d

a c c e l e r a t l o n

t h e

~ j l s e a s e

o f

p s y c h o n e u r o s l s

t o

w h l c h

t h e

e m p l o y m e n t

o f

t h e

e m p l o y e e

I	b y CTcleconll was a contributing r a c t o r n y
I

m l l l l . .

I ani

s a t ~ s f l e d

t h a t t h e a s s o c i a t i o n

o f

t h e

n o 1 s c s

11-1

h e r

ears

w i t h

T e l e c u n l

a n d

h e r

reactions

t o

h e r

m e m o r i e s

o f

T e l e c o m

s r e

s y m p t o m s

s l m p l y

t h s t

i l l n e s s

a n d

n o t

manifestations

O E t h e

i l l n e s s

b e l n g

c a u s e d

contributed

a n y

t o

l o n g e r

b y

e m p l o y m e n t

f a c t o r s .

T h e

n l e d i c 3 l

e x p e r t s

were

i n

a g r e e m e n t

w i t h

Dr.

Gouras'

p r o p o s i t i o n

t h a t

t h e

s e q u e l ~ u 0.C

1 n J u r y

L l l r l e s s

c o u l d

p r o d u c e

r e a c t i o n

h a v i n g

t h e

e f f e c t

o f

c o n t r l t ~ u t i n g

t o

a n

e : : ~ s t l n g

n l e n t s l

i l lness.

T h e y

d i rPe rcd

3 5

t o

w h e t h e r

I n

t h l s

c 3 5 e

!	t h e	s e q u e l a e	were	now	h a v i n g	a	c o n t r l b u t l n g	e f f e c t	on	t h e
I

r e s p o n d e n t ' s

i l l n e s s

o r

i n c s p a c l t y .

Dr.

C o n r o n

t h o u g h L

n o t .

Ur.

Cohen

Iunable

was

t o

s a y .

Dr.

P a r k e r

c o n s i d e r e d

t h e

r e s p o n d e n t ' s

memories

o f

Te lecom

were

p l a y i n g

continuing

r o l e .

Dr.

Sime t h o u g h t

t h a t

1 0

per

c e n t

o f

a 1 1

f a c t o r s

c o n t r l b u t 1 n g

t o

her

p r e s e n t

c o n d i t i o n

were

w o r P - r e l 3 t e d

s e q u e l a e ;

t h e

other

90 p e r

cenL

were

o u t s i d e

f a c t o r s

s u c h a s

c o n y e n l t a l

d l s p o s l t l o n

t o

b e c o m e

n e u r o t i c ,

e a r l y

m a r r i a g e ,

u n w l l l l n g n e s s

t o

come

t o

A u s t r a l i a

a n d

d o m e s t i c

p r o t ~ l e n l s .

T h e

g e n e r a l

l i a t ~ i l i t y

o f

t h e

C o m m o n w e a l t h

p a y

t o

c o m p e n s a t i o n

r e s p e c t oP

its

i n ~ u r e d

e m p l o y e e s

p r o v l d e d

f o r

s . 2 7 ( 1 )

o f

t h e Act,

w h i c h

s t a t e s :

'I1

p e r s o n a l

i n j u r y

a r i s i n g

o u t

o f

t h e

c o u r s e

e n p l o y m c n t

t h e Cosmonwea l th

o f

o €

e m p l o y e e

a n

b y

t h e

c a u s e d

e m p l o y c e ,

t h e

t o

t h e

ConlnionwcalLh

1 5 ,

5 l J h J e C t

t o

t h l s

Act,

l i a b l e

t o

p a y

c o m p e n s a t i o n

r e s p e c t

i n J u r y

t h s t

i n

o f

1rl

a c c o r d a n c e

w i t h

t h i s

Act.

" (1	) Where-

( 3 )

e m p l o y e e

........ ....

SIJfferS

a n

a g g r a v 3 t l o r 1 ,

a c c e l e r a t i o n

o r

r e c u r r e n c e

o f

d i s e a s e ;

a n d

(h)

any

en ip loynlent

e m p l o y e e

t h e

o f

t h e s c c e l c r a t l o n

b y

Commonwcalth

w3s

c o n t r i h ~ ~ t i n g

f a c t o r

t o

........ .. t h e

a g g r a v a t i o n ,

o r

r e c u r r e n c e ,

t h e case

~ o a y he,

w h e t h e r

o r

n o t

t h e

........

a g g r a v a t i o n ,

s c c e l e r s t i o n

r e c u r r e n c e

w 3 5 s u f f e r e d in

t h e c o l ~ r s e

o f

t h s t

10.

e m p l o y m e n t ,

t h e

s u c c e e d i n g

p r o v i s i o n s

o f

t h i s

s e c t l o n

h s v e

e f f e c t

( 2 )

IE-

..... ...

....

-...

......."

( e )

t h e

t o t 3 1

p a r t i a l

l n c s p s c l t y

f o r

work

o f

t h e

e m p l o y e e ,

r e s u l t s iron) l..l..l.

t h e

a g g r a v a t i o n ,

s c c e l e r a t l o n

o r

r c c u r r e n c e

t h e d i s e a s e ,

........ t h e r l ,

f o r

t h e

p u r p o s e s

o f

t h i s

Act,

u n l e s s

t h e

c o n t r a r y

i n t e r l t l o n

a p p e a r s -

( f )

t h e

s g g r 3 v a t i o n ,

a c c e l e r s t i o n

r e c u r r e n c e y a s

t h e

case

m3y

be,

s h s l l

tme

deemed

t o b e a

p c r s o n 2 1

l r l j u r y

t o t h e

e m p l o y e e

a r i s i n g o u t OP t h e employmcnt

t h e

e m p l o y e e

b y

t h e Commonwesl t l j ;

a n d

( 9 )

. .. .. . .. t h e

, d a t e

o f

t h e commencewel-It

o f

t h e

i n c a p a c l t y

..-....

,, s h s l l bc. dcemcd t o be

t h e

1?3te of

t h e

I n J u r y . '

S e c t i o n 5 (11 )

of t h e

Act,

f3r s s

it 1s

r e l e v a n t ,

' F o r

t h e

p u r p o s e s

t h l s Act-

( 3 )

t h c . l . m . l l .

l n c 3 p a c l t y

........

o€

3 n

e m p l o y e e ,

. . ~

.....

s h s l l be t s k e n

t o

h s v e

r e s u l t e d

f r o m

........

a n

aggravation,

z c c e l r r a t l o n

r e c u r r e n c e

d ~ s e a s e

s u f f e r e d

t h e

e m p l o y e e

........

t h e

sggr e v x t l o n ,

3 c c e l e r a t i o n

o r

r e c u r r e n c e ,

3 5

t h e

c a s e

nj3y

h e ,

c o n t r l h u t e d

t o

t h e

...... . .

l n c s p a c l t y ,

.. ..-...

S e c t l o n 5 ( 1 ) d c f l n e s

t h e

term

' d i s e a s e '

t o I n c l u d e

any

p h y s i c a l

m e n t a l

3 l l n l c n t ,

I d i s o r d e r ,

defect

o r

m o r b l d

c o n d l t l o n ,

w h e t h e r

sudderl

o n s e t

o r

g r a d u a l

d e v e l o p m e n t .

11.

T h e

r e l e v s n t

p o r t i o n s

s .31 (4 )

w h i c h ,

p u r s u 3 n t

t o

s1.1t3-s. (S), is n o t t o

b e c o n s t r u c J as

l i n l l t i r ~ g

t h c

g c n e r s l l t y

5 . 2 9 ,

r e a d

f o l l o w s :

' A n

l n c a p a c i t y

for work

o f

........

enlployee

sr l

s h a l l

t a k e n

for t h e

p u r p o s e s

o f

t h i s A c t

t o

h a v e

beer1

c o n t r i b u t e d

t o

........

a g g r s v a t i o n ,

a n

a c c e l c r a t l o n

r e c m r e r n c e

d l s e a s e ,

l€,

tnut

f o r

tha t ,

. . . . . . . .

s g g r a v a t i o n ,

a c c e l e r s t l o n

o r

r e c u r r e n c e ,

t h e

c a s e

may

be-

( a )

i h e

I n c a p a c i t y ,

. .....

w o u l d

n o t

h a v e

o c c u r r e d ;

( h )

thr. I n c a p a c i t y would

have

conlmenced,

"..

. "..

at,

s i g r ~ i € i c a n t l y

l a t e r

t1 loe;

u r

( c )

t h e

e x t c r l t

o f

t h e

i n c s p 3 c l t y ,

. I l . Y I

would

h a v e

tacen

s l g n ~ f ~ c s n t l y l e s s . ,

A t ,

a n e a r l y s t a g e of ~

r e s s u n s

the

T r i b u n a l

e x p r e s s e d

t h e

q u e s t i o n

w h i c h

l t h a d

t o d e c i d e as

€ G ~ ~ o w s : -

' I t

renlsins

b e

t o i l l n e s s

considered

w h e t h e r

t h e

[ r e s p o n d e n t ' s ]

m e n t 3 l

i s

now

w h o l l y

t h e

o r i g i n a l

i l l n e s s

1r1

n a t u r a l

c o u r s e

o f

d e v e l o p m e n t

u n a f f e c t e d

t h e

a g g r a v a t i o n

a n d

a c c e l e r a t i o n b y her

employment

i n c l u d e s

a 5

p a r t

o f

i t

c o n t i n u i n g

h y s t e r l c 3 1

r c a c t l o n

t o

t h a t

a g g r a v a t ~ o n

s n d

s c c c l e r a t ~ o n . '

Later

i t s r e s 5 0 n s

t h e

T r i b u n s l

s e l d :

'The

issue t o hc b:lecided

15, t h e r e p o r e ,

w h e t h e r

i n

t h e

p r e s e n t

c a s e

t h e

s e q u e l a e

t h e

a g g r s v s t i o n

s n d

a c c e l e r 3 t l o n

t h e

[ r e s p o n d e n t ' s 1

o f

a n : : l e t y

n e u r o s i s

tny

h v r

c m p l o y n l c n t

h a v e

c o n t i n u e d

t o

T r i b u n s l

T h e

f u r t h e r

s s i d

t h l t

i t

a c c e p t e n d

e v i d e n c e

t h e

o f

thc

t h r e e

p s y c h i a t r i s t s

t h 3 t

t h e

r e s p o n d e n t

klould

tny

now

h a v e

b e e n

totally

i n c s p s c i t a t e d

b y

h e r

l l l n e s s

e v e n

i f

i t

h a d

n o t

tneen

a g g r s v s t e d

srld

s c c e l e r a t e d toy

her

employment . .

C o r ~ s c q ~ u e r ~ t l y

v i r t u e of

t h e

p r o v l s i o n s

o f

s e c t i o n

27(1) of

t h e Act,

a s resd

w i t h

s e c t i o n 29,

t h e

CTeleco~nl r e m a i n s

1 i a l . a l e

t o

p a y

c o m p e n s a t i o n

t o

t h e

T h l s ~ 3 5 5 3 3 ~

g i v e s

r i s e to

serious

d o u b t s

a b o u t

t h e

T r l b u n s l ' c ,

r e s s o n s

c o n s l d e r e d

s s

w h o l e .

While p s y c h l a t r l s t s t o

~t was

o f

t h e

o p i n l o n i h s t ii W ~ S

L e t t e r

p l s c e d

t h s n

s n y

o f

t h e

d e t , e r m l n e

w h e t h e r

t h e

s e q u e l a e

t h e

s g g r a v s l l o n

and

s c c e l e r a t l o n

were

' c . o n t l n u l n g

t o c o r ~ t r ~ b u t e

t o h e r

L n c s p s c l t y

f o r

work'

went

or1

c o n c l u d e

t o

t h s t

' c o n s c q u e n c e s '

t h e

l i s t e d

o€

t h e

a q g r a v a t l o n

3 r d

s c c e l e r a t l o n

n l e n t s l

h e r

i l lness

were

' C O I - I ~ I ~ I I . I I ~ I ~

t c l

p1 3 y

p s r t IF!

t h s t

l l l n e s ~ , '

s s

thcd

5 1 n a I

s t e p

t o

i l n d l r l g

f s v o u r

t h e r e s p o n d e n t .

o u r

v l e w

t h e r e

3re

t w o

f l a w 5

1rl

t h e

T r l b u n s l ' s

s p p r o s c h ,

b o t h

of w h i c h

constitute

errors of

law.

Thc

f i r s t

r e l 3 t . e s

t o

t h e

q u e s t ~ o n

w h e t h e r

s n y enlployntent

toy

t h e Corninonwealth

1 5 s t l l l

c o n t r i b u t ~ n g € 3 c t o r

t o

s n y

r e l evsn t

a g g r s v a t l o n

o r

s c c e l e r s t l o n

o f

t h e

r e s p o n d e n t ' s

d l s e 3 s e .

w l t h l r l

t h e

nleanlng

5 . 1 9 ( 1 )

t h e Act.

O n t h i s i s s u e ,

b e l l e v e s p p s r e n L l y

t h e T r x h u n x l

led

~ h s e l f

l n t o

e r r o r

b y

a d o p t i n g

t h e

w o r d

' s e q u e l a e ' ,

u s e d

b y

o n e

o f

t h e

n l e d l c s l

witnesses,

w ~ t h o u t

c o n s l d e r ~ n g

w h e t h e r

t h e

f a c t o r s

l l s t e d

w e r e

t r u l y

t h e

r e s u l t s

c o n s e q u e n c e s

t h e

i o r m e ~

3 g 9 r s v s t 1 o n

snd

s c c c l e r a t l o n ,

w h l c h

lt must

remenlbered

h a d ~ s c s u l t e d o r r e s ~ ~ l t s

f r o m

n o l s e

snd

s t ress ,

r s t h e r

t h s n f i r s t t h r e e

t h e

n l s n l f e s t a t i o n s

h e r

u n d c r l y l n g

d i s e s s e .

T h e

f a c t o r s

11stcd I l o w

€ r o n l

t h e

r e s p o n d e n t ' s

e n l p l o y n l e n t

w l t h

T e l e c o m ,

but

f r o m her

c e 5 5 a t l o n of

t h a t work;

t h e y Are

n o t

a f f e c t e d

s n y

wsy

b y

t h c n s t u r e

o f

her

f o r n l c r

work-,

b u t

s r i s c s l m p l y f r o m

t h e

f a c t

o f

p r e v i o u s

e n l p l o y m e n t

o p e r a t l n g

o n

p e r s o n

o f

h e r

t e m p e r s m e n t ,

b s r l , g r o u r , d

s n d

f s n l l l y

c l r c u w s t 3 n c e s .

T h e

f s c t

t h 3 t

s h e

f e e l s

h e r

14.

s t s t u s h s s d e c l ' e a s e d

a s

r e s u l t

l o w e r

e s r n i n g s ,

tuut

s h e

flhds

not, worlr lng

congenial,

a n d

e n J o y s

t h e

i n c r e a s e d

attention

f r o m

h e r

family,

csn h 3 r d l y bc s s i d t o

f l o w

f r o m ,

h s v e

t e e n

c o n t r ~ b u t e d

e n l p l o y m e n t

h e r

b y ,

t o

tsy

t h e

Commonwealth.

T h i s

1ss1.1e

o f

causation

1435 s l m p l y n o t

c o n s i d e r e d

toy

t h e

T r i b u n a l ,

w h l c h

sssunlen:I

c a u s a l

c o n n c : : i o n

t n e c a l l s e

t h e s e

things

f l o w c d ,

m e d l c a l

s ense?

f r o m

t h e

c e s s a t i o n

o f

w o r k ,

w h i c h

w a s

turn

c o n t r l b u t e d

t o

tty

e m p l o y r n c n t

f 3 c t o r s .

I	For	t h o s c	r e 3 5 o n s	t h e	m s t t e r	should,	11-1	o u r	v i e w ,	go
i

back

t o

T r l b u n a l

t h e

o d e t e r m l n e

t o

w h e t h e r

c o n t l n u l n g

t h e

i	r e a e n t n 1 e n t	o f	r e s p o n d e n t	t h c	s b o u t	f i r s t	t h e	a g g r s v a t l o n	a n d
I

s c c e l c r s t i o n o r

h e r

d l s e a s e

f s c t

c a u s x l l y

r e l s t e d

t o

h e r

f o r m o r

e n l p l o y w c n t ,

a n d ,

i f

s o ,

w h e t h e r

p l s y i n g

s u c h

p a r t

h c r

p r e s e n t

s t s t e

h e a l t h

t h a t

i t

c a n

p r o p e r l y

a n d

f s i r l y

b e

salcl

t o h e c o n t r l b u t l n g

t o

c u r r e n t

a g g r a v s t i o n

a c c e l e r 3 t l o r 1

n f hcr

dlsesse s n d

n o t

m e r e l y

providing

f o c u s

for

t h a t

d l s e s s e .

For

t h e r e s p o n d e n t

t o s u c c e e d ,

s h e

must show t h a t

s h e

s ~ ~ f f e r l n g

f r o m a

m e n t a l

i llness,

a g g r a v s t e d

o r

a c c e l e r a t e d

h e r

employmen t

w l t h

T e l e c o n l ,

w h l c h

a g g r a v a t i o n

o r

a c c e l e r s l ~ o n h a s

C O n t r l h l J t e d

h e r

p r e s e n t

t o

l n c a p a c l t y .

Re fo rc

t h e

T r l h I J n 3 1

c o u n s e l

f o r

T e l e c o m

s p p s r e n t l y

c o n c e d e d

t h a t ,

e v e n

i f

t h e

p r e v l o u s

a g g r a v s t l o n

a n d

s c c e l e r a t l o n

had

c e a s e d ,

e m p l o y m e n t

w l t h

Teleconl

c o u l d p r o p e r l y

h e

ssld

t o toe

c o n t r l h u t l n g

C O

p r e s e n t

i n c a p a c ~ t y

' 1 F

C h e

c u n ~ e q u e n c e s of

t h e

3 g g r s v s t i o n

a n d

a c c e l e r s t l a n

w e r e

now

contributing

t o c a u s i r l g

h e r

mentsl

t h l n k

t l 1 3 t w a s

p [email protected]

c n n c e s s ~ o r ~

p r o v l d e c l C h a t

t h e

word

' c o n s e q u e n c e s '

l l m l t e d

t o l o q a l

c o n s e q u e n c e e ,

w r t h

the

c h a r n

c s u s s t l o n

i n t s c t ,

s n d

d o e s

n o t

e x t e n d

C O

o t h e r ,

l o o s e l y - c o n n e c t e d ,

l 3 k e t .

e v e n t s . ,

l b .

there

s p p c a r s

t o

b e

r e s 1

d g n g c r

t h a t

I t

m l s d l r e c t c d

l t s e l f

o n

t h ~ s

s c o r e .

For

t h i s

r e a s o n

a l s o ,

m a t t e r

t h e

r e q u i r e s

r e c o n s l d e r a t l o n	b y	t h e	T r l b u n a i .	I .
I
I
I

r- ,

1 7 .

[1985] FCA 385

12 Aug 1985