Commonwealth Banking Corporation v Burns, A
[1990] FCA 359
•20 JULY 1990
Re: COMMONWEALTH BANKING CORPORATION
And: ANGUS BURNS
No. G352 of 1989
FED No. 359
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS
Administrative Law - appeal from the administrative appeals Tribunal - Commonwealth Government Employees' Compensation - mental illness - whether employment aggravated applicant's anxiety and depression - whether decision of the Administrative Appeals Tribunal open having regard to the evidence before it.
Compensation (Commonwealth Government Employees) Act 1971 - s.29
HEARING
SYDNEY
#DATE 20:7:1990
Counsel for the applicant: Mr A.R. Emmett QC and Mr C.J. Birch
Solicitor for the applicant: Mr L.E. Taylor
Counsel for the respondent: Mr L.T. Grey
Solicitor for the respondent: Messrs McClellands
ORDER
The application be dismissed with costs.
Note: Settlement and entry of order is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal constituted by Senior Member Dr R.A. Hayes. The learned Senior Member found that Mr Burns had suffered an aggravation to an underlying psychiatric condition from which he suffered as the result of his work with the Commonwealth Banking Corporation and that, as a result, he had periods of incapacity for work. The Senior Member set aside the decision under review and remitted the matter to the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees with appropriate directions.
From that decision, the Commonwealth Banking Corporation has appealed. When the notice of appeal was drawn, it was thought that there was a question as to whether all relevant periods of incapacity fell to be considered under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the 1971 Act") or whether some periods were to be dealt with under the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth) ("the 1988 Act"). It was also in mind that there could be important issues to the operation of the 1988 Act in the circumstances of Mr Burns' case. Mr A. Emmett QC, with Mr C. Birch of counsel, appeared for the respondent to deal with those issues. However, Mr L.T. Grey of counsel, who appeared for Mr Burns, conceded that the relevant periods of incapacity covered by the decision of the Senior Member, concluded on 8 May 1987. On this footing, counsel were agreed that the matter fell for consideration within the terms of the 1971 Act.
That left as the sole issue in the appeal the question whether the decision of the Senior Member was open having regard to the evidence which was before him and of the findings of fact which he made. Mr Emmett referred to the oft cited comments of Lord Radcliffe in Edwards v. Bairstow and Anor (1956) AC 14 at p 36.
I need not set out the well known terms of s.29 of the 1971 Act nor need I discuss in detail the application of that provision to the aggravation of a mental illness. Counsel were content to accept my discussion of the relevant authorities in Westgate v. Australian Telecommunications Commission (1987) 17 FCR 235. I therefore adopt the discussion in that case. It is sufficient for me to refer again to the remarks of Windeyer J. in Federal Broom Co. Pty Ltd v. Semlitch (1964) 110 CLR 626 where his Honour said at p 641:-
"When the Act speaks of 'employment' as a contributing factor it refers not to the fact of being employed, but to what the worker does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
In Westgate's case, at p 242, I said:-
"Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant's developing depression focused its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant's depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease."
Mr Emmett did not submit that the Senior Member, who referred in his reasons for decision to Westgate's case, did not apply the correct principle. Mr Emmett limited his submission to the contention that the Senior Member's conclusion was not open having regard to the evidence and to his findings of fact.
The evidence before the Tribunal disclosed that Mr Burns suffered from an underlying mental disorder, the cause of which had not been determined. However, an aggravation of that condition had been precipitated and the condition had been made symptomatic as a result of stresses which occurred during Mr Burns' employment with the Commonwealth Banking Corporation while he was in Papua New Guinea during 1976 to 1978. Mr Burns was repatriated to Australia suffering anxiety and depression. After treatment, his condition improved and he returned to work with the Commonwealth Banking Corporation. Nevertheless, he never fully recovered his previous level of adjustment and he remained vulnerable to stress.
During the period of employment with which we are now concerned, 1984 to 1986, Mr Burns was employed as assistant accountant in the Westgate Branch of the Commonwealth Bank, of which branch Mr B.D. Johnston was manager. During the time of his employment at that branch, Mr Burns suffered increased anxiety and depression and suffered from feelings of panic and agoraphobia.
The Senior Member found:-
"Both Dr Roberts and Dr Jolly, psychiatrists, consider Mr Burns to be ill. He has an underlying tendency towards anxiety and depression. Overall, he copes with work, but work stress can have the effect of making him symptomatic, the symptoms being as previously described.
Mr Burns thinks, now, that it was a personality conflict with the Westgage Manager that rendered him symptomatic in 1985. I am sure that the Manager, who gave evidence, did not feel that he was in conflict with Mr Burns. I am also sure that other senior officers in the branch, of whom one gave evidence, were unaware of any personality conflict. I am impressed by the Westgate Manager. I said in the course of my oral reasons that if I banked Commonwealth, I would like someone like him at my branch. The problem was undoubtedly in Mr Burns. It was in his mind. He did not react well to the Manager because of some problem which he, Mr Burns, had with that style of person. There was nothing abnormal or unusual in the management of Mr Burns at Westgate. But I am reasonably satisfied that he had a feeling of being in conflict with the Manager, that this promoted stress in his mind, and that as a consequence, his underlying state of anxiety and depression became symptomatic."
In my opinion, both the medical and the lay evidence given to the Tribunal strongly support the conclusion that there was something in the personality or manner of the manager, Mr Johnston, which promoted an adverse reaction in Mr Burns and led again to his anxiety, depression and panic.
The medical evidence tended to that conclusion. Dr Humphrey Beckett, the treating psychiatrist, was not called. But there was in evidence what appeared to be a well balanced report which said, inter alia:-
"For the same sorts of reasons, although his continuing symptoms and ill health have been experienced mainly in relation to his daily work, I cannot support an argument that his working conditions have actually caused this continuing morbidity. Neither can I go as far as to say that his working conditions have been completely irrelevant."
Dr H.M. Jolly, psychiatrist, gave a written report and oral evidence. He said that on the history obtained by him from Mr Burns there was a causal relationship between the employment and the anxiety state. Dr Jolly gave this oral evidence:-
"What was that causal relationship, how would you describe it?---That Mr Burns perceived pressure from a senior officer, that that caused an emotional response in him which was manifest as acute anxiety and in the face of the continuing stress the anxiety got worse and led to a situation where Mr Burns was unable to follow his usual work."
Dr Jolly rejected the view put in cross-examination that Mr Burns' view of the stress arising from his relationship with the manager was delusional. Dr Jolly thought that Mr Burns suffered from an anxiety state, not from a delusional system. Dr Jolly thought that it was proper to take what had occurred at its face value and "if there appears to be a stressor and a stress then it is a cause and effect situation."
Dr J.A. Roberts, psychiatrist, wrote a report supporting Mr Burns claim and also gave oral evidence. In his evidence, he rejected the view that Mr Burns suffered from a paranoid illness. Dr Roberts gave this evidence:-
"If one presumes for the purpose of my next question that the manager in question has acted in a reasonable fashion and not behaved towards Mr Burns in a way that would generate conflict with anybody not suffering from some psychiatric illness, might not someone suffering from an anxiety state nevertheless falsely believe that there was a situation of conflict?---I do not think a total yes or no answer could be given to that question. I think that it is possible that a person who is suffering from a depressive illness or heightened anxiety levels would be more sensitive to various behaviour that may not produce the same response in someone who was not suffering from such a state. But I would find it rather difficult to believe that nothing occurred."
Mr T.W. Jones, a psychologist, put in a written report supporting the Bank's case. However, under cross-examination, he appeared to support the case put for Mr Burns. He gave these answers in cross-examination:-
"Okay. Then in October 1984 he was transferred - got a promotion and was transferred to Westfield, which is in Parramatta Road, Stanmore?---Right.
And the - right from the start he had difficulty in his relationship with the manager at that branch?---Right. And that he felt that there was a personality clash and he felt that he was being put down by the manager and was not given enough credit for his knowledge and so on, and that they felt a rising level of anxiety during the course of that employment, and that eventually it got to the stage where he would have panic attacks driving to work?---Right. Okay. If - if that picture that I have painted is, in fact, a true picture, would you agree with the proposition that his employment contributed in a material way to his illness?---Yes. Yes, in putting it the way you have ---
Yes?------ the employment would be a - well, yes, it would be a contributing factor."
I need not deal with Mr Burns' evidence. He said that he felt stress in his relationship with Mr Johnston. He felt that Mr Johnston was critical of him.
This seems to be amply confirmed by Mr Johnston's own evidence. In examination in chief, Mr Johnston gave these answers:-
"Right. Now what was the position that Mr Burns was to take up upon his arrival at Westgate?---The position of assistant accountant.
...
Right. Did you form any view as to his competence at the work that he performed?---I formed the view that clerically he was competent."
Note the limitation which Mr Johnston placed upon his last answer. If he allowed Mr Burns to sense that limitation, Mr Burns could have reacted adversely to the implied criticism.
Note also Mr Johnston's manner when dealing with staff. Mr Johnston gave this evidence:-
"Right. Can you tell the tribunal the manner in which you dealt with your staff members, was there any difference or distinction in the way that you dealt with some staff members rather than other staff members?---I would say they were all dealt firmly and fairly. ....
Was your style of management generally a firm one?---I would say so, yes."
So we know that Mr Johnston took a firm approach with the employees of the Bank and we know that he had reservations as to Mr Burns. The question is did this have any effect upon Mr Burns. Mr Johnston himself gave this answer:-
"Right. Now, did you, yourself, make any observations as to his general behaviour at work so far as his manner was concerned, whether he appeared to be tense, anxious, or anything of that sort?---I would say he appeared to be anxious."
Mr B.T. Sharman, the accountant, gave this evidence:-
"Yes. Anyway, on those occasions when you were present, did you ever notice Mr Burns being apprehensive in the presence of the manager?---Yes.
Flustered?---Yes.
And was that different to how he was when he was not in the presence of the manager?---Slightly.
In the presence of the manager, would you agree Mr Burns was more flustered and more apprehensive than usual?---Perhaps a little, yes.
...
Do you think there might have been a personality clash between the manager and Mr Burns?---It is possible."
The finding of the Senior Member that Mr Burns "did not react well to the Manager because of some problem which he, Mr Burns, had with that style of person." is thus well supported by the above evidence and indeed is the conclusion that I myself would draw from the evidence.
Any conclusion that Mr Burns' anxiety and panic was attributable to a delusional or paranoid mind would have been inconsistent with the evidence of Dr Jolly and of Dr Roberts which was to the contrary. I do not read the reasons of the Senior Member as putting forward any such view.
Indeed, the evidence as a whole tended to relate Mr Burns' anxiety principally to his employment, in New Guinea and at the Westgate Branch, rather than to other aspects of his life.
Mr Emmett placed great weight upon the Senior Member's comment that "The problem was undoubtedly in Mr Burns. It was in his mind." But the Senior Member was not intending to say there that Mr Burns had not acted adversely to Mr Johnston's personality and style of management. On the contrary, the Senior Member came to the conclusion that it was that factor which precipitated the aggravation in Mr Burns' condition. Rather the Senior Member was pointing out that Mr Burns' response to Mr Johnston's style was the response of a person suffering, as Mr Burns did, from an underlying condition of anxiety and depression.
In the result, therefore, I am satisfied that there was no error of law in the Tribunal's decision. The application must be dismissed with costs.
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