Coe v Comcare
[2007] FCA 1564
•11 October 2007
FEDERAL COURT OF AUSTRALIA
Coe v Comcare [2007] FCA 1564
ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal not to grant compensation for psychiatric injury – review of adequacy of Tribunal’s reasons – absence of clear finding on particular diagnosis – Tribunal entitled to find causation not proved
DAMAGES – causation – meaning of “contributing factor”
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 14, 124(1A)
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 29Chappel v Hart (1998) 195 CLR 232 referred to
Comcare v Mooi (1996) 69 FCR 439 distinguished
Dennis Wilcox Pty Limited v Commissioner of Taxation (1983) 19 ATR 1122 referred to
Dodds v Comcare Australia (1993) 31 ALD 690 applied
Dornan v Riordan (1990) 24 FCR 564 applied
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 distinguished
Favelle Mort Limited v Murray (1975-76) 133 CLR 580 cited
Hawkins v Comcare (2001) 115 FCR 127 applied
March v E & M H Stramare Pty Limited (1991) 171 CLR 506 discussed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 applied
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 219 ALR 27 referred to
Wade v Comcare [2002] FCA 305 referred toLINDA MARION COE v COMCARE
NSD 577 of 2007LINDA MARION COE v ADMINISTRATIVE APPEALS TRIBUNAL
and COMCARE
NSD 840 of 2007JACOBSON J
11 OCTOBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 577 of 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS J KELLY, SENIOR MEMBER AND DR S H TOH, MEMBER
BETWEEN:
LINDA MARION COE
ApplicantAND:
COMCARE
Respondent
NSD 840 of 2007
BETWEEN: LINDA MARION COE
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
COMCARE
Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
11 OCTOBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application in Proceeding NSD 577 of 2007 be dismissed.
2.The application in Proceeding NSD 840 of 2007 be dismissed.
3.The applicant pay the costs in each of the the proceedings.
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
NSD 577 OF 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MRS J KELLY, SENIOR MEMBER AND DR S H TOH, MEMBER
BETWEEN:
LINDA MARION COE
ApplicantAND:
COMCARE
RespondentBETWEEN: LINDA MARION COE
ApplicantAND: ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent
COMCARE
Second Respondent
JUDGE:
JACOBSON J
DATE:
11 OCTOBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
In December 1979, Ms Linda Coe was injured in an explosion at a factory at St Marys owned by the Department of Defence where she then worked. She suffered physical injuries in the accident and was unable to work for some time.
Although she received compensation from Comcare, or its predecessor, and damages for a common law claim, she apparently had no communication with Comcare between May 1984 and September 2001. In September 2001, Ms Coe sought to resurrect her claim for compensation contending that she suffered Post Traumatic Stress Disorder as a result of the explosion at the factory.
On 5 March 2007, the Administrative Appeals Tribunal affirmed two reviewable decisions, the effect of which was to reject Ms Coe’s claim. The Tribunal found that she did suffer from a psychiatric condition, which it did not expressly identify but which it found was not Post Traumatic Stress Disorder. However, the Tribunal found that the condition was not “relevantly caused” by the accident: see [5].
In coming to that conclusion, the Tribunal preferred the evidence of a psychiatrist called by Comcare, Dr Skinner, to that of two other psychiatrists, Drs Dinnen and Synnott. The Tribunal gave reasons for doing so.
Nevertheless, Ms Coe contends that the Tribunal’s decision was affected by errors of law within the meaning of the s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). She seeks review of the decision on three principal grounds.
The first ground is failure to set out the Tribunal’s findings on material questions of fact and the evidence on which the findings were based. This ground is said to arise because the Tribunal did not arrive at a diagnosis for the psychiatric condition from which Ms Coe suffers.
The second ground is that the Tribunal failed to address the correct question. This ground is said to arise because the Tribunal asked itself whether the condition was “relevantly caused” by the explosion, rather than whether it was a “contributing factor” as stated in the applicable statutory scheme.
The third ground is that the Tribunal failed to complete the exercise of its jurisdiction. This is related to the second ground and is said to arise because, having found that Ms Coe suffers from a psychiatric illness, the Tribunal should have asked itself whether the condition was contributed to by her employment: see Comcare v Mooi (1996) 69 FCR 439
Ms Coe brought a separate proceeding, NSD 577 of 2007, by way of an appeal to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). That step was taken because the Registry had, several days earlier, rejected the filing of an application for judicial review. Counsel for Ms Coe accepts that the appeal does not raise a question of law, so that proceeding NSD 577 of 2007 must be dismissed.
The Legislation
The Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) makes provision for payment of compensation by Comcare to Commonwealth employees in respect of an injury that results, inter alia, in the employee’s incapacity for work: see s 14 of the SRC Act.
Injury means, amongst other things, a disease suffered by an employee: see definition in s 4 of the SRC Act as it was prior to amendment earlier this year; cf. s 5A(1) of the current SRC Act.
The term “disease” was defined in s 4 of the SRC Act, prior to its 2007 amendment, as follows:
“(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…”Any entitlement of Ms Coe to compensation from Comcare arose prior to the commencement of the SRC Act. The transitional provisions of the SRC Act deal with this by providing that a person is entitled to compensation under that Act in respect of an injury suffered before the commencement day if compensation was, or would have been payable to the person for that injury under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the Compensation Act”): see s 124(1A) of the SRC Act.
The relevant provision of the Compensation Act for present purposes is s 29 which provides for compensation to be payable where the employment of the employee by the Commonwealth was “a contributing factor” to the contraction of the disease or to its aggravation, acceleration or recurrence: see s 29(1)(b) of the Compensation Act.
The Facts
It is not necessary for me to set out the background facts in any detail as they are sufficiently recorded in the reasons for decision of the Administrative Appeals Tribunal.
Ms Coe’s injury occurred on 10 December 1979 when she was 20 years old. She appears to have suffered fairly extensive physical injuries because she was in Nepean Hospital for nine days. Her injuries included lacerations to the face and neck, embedded foreign bodies, disturbed hearing and concussion. Liability for compensation payments was accepted by the Commonwealth and Ms Coe received compensation payments under the Compensation Act from about the time of the accident.
During 1980 Ms Coe continued to receive medical treatment and was re-admitted to hospital on one occasion. A note on her work medical file in November 1980 stated that she was not fit to return to work. The note referred to “nerves” and said that she would be seeing a hypnotist.
In 1981 Ms Coe saw a number of medical practitioners for medico-legal assessment for a claim for damages. There were two psychiatric reports prepared in 1981 which were relevant to the proceedings in the Administrative Appeals Tribunal. One was from Dr Revai. The other was from Dr McMurdo.
Dr Revai’s report of 17 June 1981 stated that Ms Coe was “overinvolved with her facial appearance”. This was apparently a reference to scarring from the explosion. He went on to say that he could not satisfy himself “that there were any other signs of anxiety” inappropriate to her personal circumstances.
Dr McMurdo could find “no real evidence” of severe clinical depression. Dr McMurdo said that Ms Coe believed she was more tense and self-conscious as a result of her facial scarring and that:
“(i)t seems probable that the anxiety which [Ms Coe] manifests and the symptoms of headaches are related to the accident...”
Ms Coe’s common law claim for damages in the District Court of New South Wales was settled on 25 February 1982. She was awarded $19,000 inclusive of costs. From this, there was deducted an amount of approximately $6,000 in respect of compensation payments made to her under the Compensation Act.
By letter dated 21 May 1984 from Commonwealth Employees’ Compensation, Ms Coe was informed that she would not be entitled to any further compensation under the Compensation Act until such time as the net amount awarded for damages had been offset by the compensation that would have been payable but for the damages award.
On 25 September 2001, Ms Coe’s solicitors wrote to Comcare giving notice of their instructions to resurrect the claim. They stated their instructions that Ms Coe’s incapacity and need for treatment continued as a result of her injury on 10 December 1979. They also stated that they were instructed that Ms Coe’s ongoing difficulties included anxiety and depression as well as other ailments.
On 7 April 2005 a delegate of Comcare refused the claim. The delegate’s decision was that Ms Coe did not “presently suffer from the effects of [her] compensable injury on 10 December 1979”. That decision was reconsidered and affirmed by Comcare on 10 June 2005.
The Tribunal’s Decision
In its introduction, the Tribunal said that the only issue in the proceedings was whether the psychiatric condition from which Ms Coe suffers was “relevantly caused” by the explosion. It went on to identify at [4] the following subsidiary issues:
· the appropriate diagnosis of Ms Coe’s psychiatric condition;
· the date of onset
· the date of onset of incapacity or periods of incapacity;
· her need for medical treatment.
The Tribunal referred in some detail to the evidence of a general practitioner, Dr Barrett, and a psychologist, Ms Clark. Both of those persons considered that Ms Coe had Post Traumatic Stress Disorder and Ms Clark was of the view that this was likely to be related to the explosion. However, the Tribunal was “not persuaded on the evidence that this [was] the correct conclusion.” See [37]. This was a reference to its analysis of the psychiatric evidence.
The Tribunal observed that it had reports and oral evidence from the three psychiatrists. It said that each made a different diagnosis and was unshaken by the opinion of the others. It went on to say that Dr Dinnen concluded that Ms Coe’s psychiatric condition was “relevantly caused” by the explosion whereas Drs Skinner and Synnott did not: see [38].
Dr Dinnen’s opinion was that Ms Coe suffered from Post Traumatic Stress Disorder and severe depression, the onset of which he linked to the explosion: see [39].
The Tribunal recorded at [41] that in cross-examination, Dr Dinnen said he would not have diagnosed Post Traumatic Stress Disorder on the basis of the symptoms described by Ms Coe to Drs Revai and McMurdo in 1981. The Tribunal said that Dr Dinnen arrived at his diagnosis by looking back over the years as the full picture emerged.
Dr Skinner’s diagnosis as stated by the Tribunal at [43], appears at first sight to support Ms Coe’s case on the question of possible aggravation of a pre-existing disorder. The Tribunal said:
“Dr Skinner’s diagnosis was anxiety disorder with agoraphobia, which was probably present prior to the explosion but which is apparent when Ms Coe feels that she is not receiving adequate emotional support.”
However, it is evident from the balance of the Tribunal’s reasons, and from a consideration of the transcript of Dr Skinner’s evidence, that her evidence did not establish the case which Ms Coe sought to make.
The reason why the Tribunal preferred Dr Skinner’s evidence to that of Drs Dinnen and Synnott was that, in its view, Dr Skinner had given appropriate consideration to Ms Coe’s history before and after the explosion. It considered that Dr Dinnen had glossed over other events after the explosion which the Tribunal considered to be significant: see [44] – [45].
Central to the Tribunal’s reasons was its consideration of the reports of Drs Revai and McMurdo who had examined Ms Coe at a time much closer to the explosion of 1979. Although Post Traumatic Stress Disorder was not a recognised diagnosis in Australia until about 1983, the Tribunal considered that the reports of Drs Revai and McMurdo were inconsistent with the diagnosis made by Dr Dinnen.
The following passages of the Tribunal’s reasons are significant:
“[46] Both Dr Dinnen and Dr Skinner considered the reports of Dr Revai and Dr McMurdo, both of whom found no evidence of significant anxiety or depression. Both Dr Dinnen and Dr Skinner said that the symptoms reported to those psychiatrists in 1981 did not support a diagnosis of PTSD.
[47] We consider that if Ms Coe had had PTSD from the time of the explosion as Dr Dinnen finds, Dr Revai and/or Dr McMurdo would have noted symptoms which although not leading to a diagnosis of PTSD at that time, would have been noted by a psychiatrist examining her about the impact of the explosion on her, and which may have constituted a different diagnosis of an anxiety disorder. We prefer Dr Skinner’s evidence on that point. We do not consider that Dr Dinnen gave adequate consideration to the reports of Dr McMurdo and Dr Revai.”
The Tribunal observed that Dr Synnott’s evidence was “helpful” in that his diagnosis of Ms Coe was that she suffered from generalised anxiety disorder which was not related to the explosion. The Tribunal said that this supported its conclusion but, otherwise, his evidence “did not assist [it] because he would not engage in helping [it] to assess the various reports …”
The Tribunal concluded its analysis of the psychiatric evidence with the following observations:
“[49] Finally, Mr Vincent who appeared for Ms Coe emphasised that it did not matter whose diagnosis we found (for example that of Dr Dinnen, Dr Barrett, or Ms Clark), it was a question of the connection with her work which was important. As set out above, we are not satisfied on the evidence that her psychiatric condition is relevantly caused by her employment.”
[50] He also argued that we could make a finding that Ms Coe satisfied the test set out in Comcare v Mooi (1996) 69 FCR 439. However, as we are satisfied that Ms Coe suffers from a psychiatric illness, it is not necessary to address that matter.”
Dr Skinner’s evidence
The Tribunal’s description at [43] of Dr Skinner’s diagnosis was taken from her report. There, Dr Skinner stated that Ms Coe suffers from an anxiety disorder with agoraphobia which was probably present prior to the explosion.
However, it is clear from cross-examination of Dr Skinner before the Tribunal, that she did not consider that the pre-1979 anxiety disorder was a clinical condition. This is to be seen from the following passages of the transcript:-
“MS KELLY: Dr Skinner, I’m just curious – I don’t quite follow in your report at page 11 you say that she has an underlying condition and dependent personality. I understand the dependent personality, but you’re saying there that she has an underlying anxiety condition. The way I read that, you’re saying that she had that prior to 1979? --- Yes, I’m not saying a disorder but it seemed that she was a rather shy, nervous sort of person. I’m not saying it’s – everybody has anxiety and I thought she’s a bit more anxious than most people.
…MR VINCENT: Senior Member Kelly was asking you about your diagnosis on page 11 and specifically where you say, ‘Has an underlying anxiety condition’. As I’ve got your answer, you said, ‘Not an anxiety disorder’? --- Yes.
Not an underlying anxiety disorder? --- Yes.
Is that right? --- Yes.
Well, isn’t what you actually said in the previous paragraph – ‘Ms Coe suffers from an anxiety disorder’? --- Well, I was talking about presently, you know, in the answer to ---
This was probably – sorry. This was probably present prior to the 1979 accident? --- Yes, I probably should have said that it was – yes, I probably should have said the tendency was there, rather than it being present. I don’t think it was a disorder. I’m sorry, I don’t think it was a disorder prior to 2002. She describes being more functioning better before that.”
Dr Synnott’s evidenceDr Synnott assessed Ms Coe in March 2005. He stated in his report that she described symptoms which met the diagnostic criteria of generalised anxiety disorder. He was quite unequivocal in his opinion that this diagnosis had “nothing to do with” the explosion which occurred in 1979.
In cross-examination, Dr Synnott said that for him to express the view in 2005 that Ms Coe’s generalised anxiety disorder was due to the explosion would be “adventurous”.
He went on to make some slight concessions upon which Mr Vincent, counsel for Ms
Coe, now relies. I will set out those passages of the transcript as follows:
“I see and everything that’s go [sic] on has some had some sort of accumulating effect to bring her to where she is now? --- That was my – I mean, you know, I mean, that – you’re asking me now and that would be my impression but again the incident – I was asked about the incident about the explosion and I felt that I couldn’t with any confidence, without being perhaps embarrassed later on, to make that kind of assertion.
…
Would it be fair to say you would expect that any major life event would have some small role in there somewhere?---I would think that given what I suspect is a personality vulnerability that Ms Coe would have been affected by a whole range of incidents. Now, determining how much of course would be very hard and again I think is adventurous …
…
I’m trying to interpret what you’re saying to me --- Yes, I would think that it would be reasonable to assume that Ms Coe would have been affected by the accident, how much I don’t know. Now, the evidence that I was shown didn’t really give much support to that, but I would think that there’s a chance that you’d have to be – you’d have to say that she would have been affected by it. How much I don’t know and, you know, whether that effect would be still having an effect now is quite a different thing.
…
Yes, and if you don’t need to actually rank them, you would still be able to say that they’re all material things that are likely to have gone into the pot and had a roll [sic]? --- Well, I would have thought that if you’re going to say that the accident would have affected her, you would think that it was going to affect her at the time. But the evidence that I was revealed – that I was given, showed that 18 months, nearly two years down the track, there was no real evidence that she was being significantly affected, at that time, by the incident in ’79.”
Ground 1: Failure to state findings
Counsel for Ms Coe submitted that the Tribunal failed to comply with s 43(2B) of the AAT Act. That provision requires the Tribunal to include, in its written reasons for the decision, its findings on material questions of fact and a reference to the evidence on which the findings were based.
Mr Vincent submitted that the diagnosis of Ms Coe’s medical condition was a material question of fact. He said it was unclear what finding the Tribunal made as to Ms Coe’s diagnosis and that this resulted in a breach of s 43(2B).
It is well established that this provision is not breached by a failure to deal with every argument that has been raised or with every possibility. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned and that they do so in a way which clearly exposes the reasoning process: Dornan v Riordan (1990) 24 FCR 564 at 567-568; Hawkins v Comcare (2001) 115 FCR 127 at [60].
Moreover, the High Court has observed that s 430(1)(c) of the Migration Act 1958 (Cth), which is in similar terms to s 43(2B) of the AAT Act, requires the Tribunal to set out the findings of fact it did make, not those it did not make. The section merely obliges the Tribunal to set out its findings on those questions of fact which it considered to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68].
It is true that the Tribunal identified the appropriate diagnosis of Ms Coe’s psychiatric condition as a subsidiary issue in the proceeding. It is also true that the Tribunal failed to express in its own words any finding as to the diagnosis. But it is implicit in what it said about Dr Skinner’s evidence that it did make a finding. It recorded Dr Skinner’s diagnosis of anxiety disorder with agoraphobia and said it preferred that evidence to the evidence of Dr Dinnen and Dr Synnott.
In my opinion, the Tribunal’s reasons were in accordance with its statutory obligations under s 43(2B). This is because the issue before it was whether Ms Coe’s psychiatric condition was “relevantly caused” by the explosion. Plainly, the Tribunal made and set out its findings on the questions of fact it considered to be material to its decision on that issue. It found that causation was not established and its reason for the finding was that it preferred Dr Skinner’s evidence to that of Dr Dinnen, particularly her analysis of Ms Coe’s medical history and her consideration of the fact that more contemporaneous psychiatric reports disclosed no symptoms of any psychiatric disorder.
Once the Tribunal had arrived at that finding, the subsidiary issues which it identified in [4] became otiose.
Ground 2 – Failure to ask the correct question
For compensation to be payable to Ms Coe under the Compensation Act, the Tribunal was required to determine whether her employment by the Commonwealth was a contributing factor to the contraction of the disease, or to its aggravation, acceleration or recurrence (see [14] above).
Departure from the language of the statute under consideration carried with it the risk of falling into error: see eg Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.
It has been held that the requirement that a person’s employment be “a contributing factor” to an injury is not as stringent as a requirement that it be “the real, the effective or the proximate cause of the injury”: see Favelle Mort Limited v Murray (1975-76) 133 CLR 580 at 598.
That case was decided before the High Court rejected the “but for” test as the sole or determinative test of causation and adopted the approach that in civil cases causation is to be determined by applying a common sense test: March v E & M H Stramare Pty Limited (1991) 171 CLR 506.
It may follow that there is little practical difference between asking whether Ms Coe’s employment caused her disorder or whether it was a contributing factor. As Mason CJ said in March v Stramare at 514, it is for the plaintiff to establish that his or her injuries are caused or materially contributed to by the defendant’s conduct: see also Chappel v Hart (1998) 195 CLR 232 at [27] per McHugh J.
It seems to me that, reading the Tribunal’s reasons fairly and sensibly, it approached its task in accordance with the statutory mandate. In my view, when it asked itself whether the explosion “relevantly caused” the disorder, it considered whether the explosion was a contributing factor to the disease or its aggravation, acceleration or recurrence.
This can be seen in two critical findings in the Tribunal’s reasons. First, in preferring Dr Skinner’s evidence to that of Dr Dinnen, the Tribunal considered that Dr Skinner had given proper consideration to events before, and particularly after, the explosion whereas Dr Dinnen had not.
Second, the Tribunal considered that if Ms Coe has had an anxiety disorder from the time of the explosion, the symptoms would have been noted by Dr Revai and/or Dr McMurdo when they saw her in 1981.
Both these findings indicate that the Tribunal asked itself whether the disorder was present before and in particular in the period of about 18 months after the explosion. In that way, the Tribunal addressed the question of causal nexus or contributing factor. Its use of the term “relevantly caused” was likely to have been shorthand for the full text of the Compensation Act, though no doubt it would have been preferable for it to have referred directly to the statutory test.
Ms Coe obtains no assistance from Dr Skinner’s diagnosis recorded at [43] of the Tribunal’s reasons. As I said above, it is clear from her cross-examination that Dr Skinner did not consider that Ms Coe had a clinical condition before the explosion or at any time prior to 2002.
The effect of what the Tribunal said at [45] and [47] was that it accepted that Ms Coe’s clinical disorder was caused by a number of major life crises which post-dated the explosion and were unrelated to it.
Nor does the concession made by Dr Synnott assist Ms Coe’s case. The passages from the transcript of cross-examination set out above show that Dr Synnott conceded that the explosion may have affected Ms Coe. However, he could not say how much and he pointed to the fact that there was no real evidence of any effect nearly two years later.
The observations of Burchett J in Dodds v Comcare Australia (1993) 31 ALD 690 at 691 are apt. His Honour described a concession made by a medical expert. He went on to say that it did not destroy the doctor’s opinion on the balance of probabilities that there was no continuing disability. He said:
“The tribunal was entitled to accept and act upon [the doctor’s] opinion, and not his doubt.”
See also the observations of Spender J in Wade v Comcare [2002] FCA 305 at [24].
The effect of what the Tribunal said at [48] was that it accepted Dr Synnott’s evidence insofar as it supported the view that Ms Coe’s disorder was not related to the injury suffered in the explosion. In that way, it considered the question of whether the explosion was a contributing factor. It did not accept that hypothesis.
Accordingly, I reject the submission that the Tribunal failed to ask itself the correct question, and that it failed to consider Ms Coe’s claim: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 219 ALR 27 at [55] ff.
Mr Vincent argued that the Tribunal failed to consider a submission, worthy of consideration, that Ms Coe’s employment was a contributing factor to her disorder: Dennis Wilcox Pty Limited v Commissioner of Taxation (1983) 19 ATR 1122 at 1130. In my opinion, this ground of review falls under the same head as failure to address a claim. Accordingly, I must dismiss it.
Comcare v Mooi
The Tribunal recorded Mr Vincent’s submission at [50] that it could make a finding that Ms Coe’s condition satisfied the test stated in Comcare v Mooi.
In that case, Drummond J said at 443 that the expressions used in the SRC Act to define the various forms of mental conditions that can amount to compensable injuries do not appear to be used in a technical medical sense.
His Honour was of the view, at 443-444, that it is unnecessary for a worker’s condition to be identified with the label of a recognised mental condition. However, he went on to say at 444:
“But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.”
The Tribunal’s reasons for coming to the view that it was not necessary to deal with Comcare v Mooi are perhaps elliptical.
However, I see no error of law in its failure to address this question. This is because the evidence of Dr Skinner, which the Tribunal accepted, was inconsistent with a finding that Ms Coe’s condition prior to 2002 was outside the boundaries of normal functioning and behaviour as stated in Comcare v Mooi.
Even if it did satisfy that test, it was unnecessary for the Tribunal to consider it further because of its finding that Ms Coe’s psychiatric condition was not “relevantly caused” by her employment.
Orders
I propose to order that the application be dismissed with costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 11 October 2007
Counsel for the Applicant: Mr M Vincent Solicitor for the Applicant: Stacks/Forster Counsel for the Respondent: Mr B Kelly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 27 June 2007 Date of Judgment: 11 October 2007
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