Davies and John Holland Pty Ltd (Compensation)

[2019] AATA 148

Davies and John Holland Pty Ltd (Compensation) [2019] AATA 148 (15 February 2019)

Division:GENERAL DIVISION

File Number:           2015/2998

Re:Mr Darrin Davies

APPLICANT

AndJohn Holland Pty Ltd

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:15 February 2019

Place:Sydney

1.The reviewable decision of the respondent made on 28 April 2015 is set aside and the matter remitted to the respondent for reconsideration with the direction that the applicant has an entitlement to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

2.Pursuant to s 67(8) of the Act the Tribunal orders that the costs of the proceedings incurred by the applicant be paid by the respondent.

..............................[sgd]...............................

Deputy President B W Rayment OAM QC

CATCHWORDS

COMPENSATION – worker’s compensation – Major Depressive Disorder with psychotic features – occupational health and safety issues – incident involving a friction drive road rail vehicle – whether applicant’s psychological condition was contributed to, to a significant degree, by his employment – expert medical evidence considered ­– decision under review set aside and remitted to respondent for reconsideration with a direction that the applicant is entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 67

CASES

Dean v Australian Postal Corporation [2010] FCA 680; (2010) 52 AAR 54

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5^th ed, 2013)

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

15 February 2019

Factual background

1. The applicant worked for the respondent from the year 2007 until he became unwell in early 2014. His employment was terminated by John Holland Pty Ltd (John Holland) on 30 April 2015.

2. This review concerns his workers compensation entitlements stemming from a claim he made in 2014.

3. John Holland is a self-insurer and its workers compensation liabilities are subject to review in this Tribunal.

4. At first for several years Mr Davies installed mobile towers and later he was put into a rail group and trained as an electrical linesman. From 2009 until 2014 he worked in the overhead wiring division of John Holland. In 2009 he also started training as an occupational health and safety representative, and remained in that role while he still worked for John Holland.

5. Prior to him becoming unwell early in 2014, he was well regarded by his workmates and those to whom he reported. Mr Williams described him as a person with whom he had a good working relationship and who was always anxious to be of assistance. He said everyone got on well with him. He was happily married with four children and in late 2014 his fifth child was born. His wife and he gave evidence before me.  His health was good at least until 2012. Until then, he had no mental health problems.

   Evidence regarding Incident at Mount Kuring-gai

6. On Sunday 12 February 2012 at Mount Kuring-gai he was personally involved in a work incident which, as he reflected on it and its significance, caused him much stress and anxiety. The incident occurred towards the end of his shift on that day. He was operating a Hi-Rail Manitou vehicle which had been modified by John Holland so as to be capable of driving both on and off railway lines. It had rubber wheels capable of travelling overland and steel wheels capable of travelling on rail lines, each capable of being engaged according to requirements. He was making minor adjustments to an overhead rail line. In heavy rain, he was asked to move the vehicle off the rail track and the vehicle’s tyre and rail wheels malfunctioned, causing it to run forward uncontrolled. He was unable to stop the vehicle and he believed RailCorp employees in the vicinity were exposed to danger from the vehicle, which was about to go down a steep slope.

7. His recollection is that the vehicle stopped when it came into contact with some oxy bottles which were across the tracks. He estimated that the vehicle moved uncontrolled for some 75 metres.

8. His evidence is that the vehicle was in an uncontrolled forward motion until it stopped when it collided with oxy bottles or an oxy cart which was across the tracks.

9. Mr Davies was shaken as a result of the incident. He says he wrote a statement describing the incident for his employer. 

10. His evidence is that after giving that first statement to Mr Graham Lythall, Mr Lythall went away with it. Later, he says, he was asked by Mr Lythall to write out another statement which described the incident as one stating that the vehicle slipped over six metres,  not involving any contact with oxy bottles.

11. In paragraphs 19, 20 and 21 of his statement for these proceedings dated 26 September 2016 Mr  Davies said:

    (19) I wrote a short one page statement. I do not have a copy of it anymore. I gave it to Graham Lythall. To the best of my memory I wrote down something like “I went to take the EWP off the tracks and touched the toggle switch when the machine started moving. I was going downhill and smashed into RailCorp’s oxy bottles in the “four foot” about three bays down. RailCorp workers tried to stop it with fish plates. It was raining”. A “four foot” is a space between rails and that is what rail workers refer to it as. Three bays down are about 75 metres down.

    (20) After I gave the statement to Graham he went away and I do not know what he did with it. I assume he read it and spoke with someone on the phone. He then came back to me. I was still shaking. Graham then said something like “Marty can’t take that statement. We’ve got to write another one. You can’t put the oxy in there and just put down six metres”. By this I understood Graham was saying that he didn’t want any mention of me crashing into the oxy and that the machine only moved six metres when it in fact moved about three bays or 75 metres.

    (21) Graham then got a pen and paper, put it in my hand and asked me to rewrite the statement. In the second statement as per Graham’s request I wrote the machine only moved six metres and there was no mention of smashing into an oxy. I felt sorry for Graham because Andy England was the “big man” in the company and everyone in the company was scared of him. I assumed that Graham had received orders from John Holland senior management and I did not want him to get in trouble because of me.

12. Mr Lythall signed a statement in this case but was not available in Sydney on the dates fixed for the Sydney hearing in December 2018. I was told that he was in international waters on a cruise. In his statement, he describes himself as a current employee of John Holland and says that he was “not at the Mt Kuring-gai worksite” on the day on which the incident occurred (12 February 2012). He says he was at the Hornsby worksite and attaches a timesheet confirming that fact. Mount Kuring-gai is near Hornsby. He does not otherwise engage with the contents of Mr Davies’ statement.

13. Importantly Mr Lythall says nothing expressly denying the assertion that he asked Mr Davies to prepare a redrawn statement. That is, he does not in terms deny Mr Davies’ allegation that Mr Lythall asked him to do so. I was told on 11 December 2018 that Mr Lythall was due to return to Sydney on 20 December 2018. Counsel for Mr Davies was unavailable to attend the Tribunal on that day because of other commitments. When pressed as to whether he objected to the tender of Mr Lythall’s statement on the ground that he was not produced for cross-examination, Mr Grey said he did not do so, and drew attention to the limited nature of his outline of evidence.

14. The supplemental section 37 documents filed by the employer on 27 April 2017 include a document bearing Mr Davies’ signature and that of Mr Colin Bush who signs as “Safety Manager”. Mr Davies’ signature bears the date 13 February 2012, a Monday. It contains detail not referred to in his statement at paragraphs 19-21. In particular, the typewritten statement asserted that after the vehicle had moved about five metres it hit the RailCorp oxy trolley and (in effect) pushed it five or ten further metres, then came to a stop when a RailCorp employee managed to throw a fish plate on the tracks. The statement asserted that there were no problems with the equipment until rain started on that day, and that rain had not previously been a problem. The typewritten statement seems to put the distance travelled by the vehicle at 10-15 metres. It states that the vehicle struck an oxy trolley, and travelled another 5-10 metres before stopping when RailCorp employees threw plates across the tracks.

15. Mr Davies was cross-examined on the typewritten statement and on a statement made by Mr Bush which had not then been served or filed in these proceedings. Mr Davies did not deny that the typewritten statement bore his signature. He said that the text contains details that were not provided by him, that is, in either of his written statements. He said that some of the details in the note did not come from him, since they were not within his knowledge, and that he could not recall any contact with Mr Bush on 12 or 13 February 2012.

16. The typewritten document bearing Mr Davies’ signature is dated by him 13 February 2012, the day after the incident. Mr Lythall says nothing about his whereabouts or any steps which he took on 13 February. 

17. Mr Bush asserts in his statement and in his oral evidence that he took the details from Mr Davies, and that the typewritten statement accorded with what he was told by Mr Davies.  Somewhat curiously, his statement concludes with a denial that he asked Mr Davies to alter his statement. I do not understand Mr Davies to assert that Mr Bush asked him to alter any statement. Mr Bush said that he does not recollect whether he was provided with any handwritten statement of Mr Davies when he prepared the typewritten statement. I accept Mr Bush’s evidence. It appears that Mr Davies has forgotten his interaction with Mr Bush and the signing of the typewritten statement.

18. The allegation that Mr Davies was asked to alter his statement by Mr Lythall had some importance in the case.  That event, if it occurred, had the propensity to induce Mr Davies to believe that John Holland did not take safety matters sufficiently seriously.

19. The applicant’s wife, Mrs Kirsten Davies, also gave evidence which I found to be generally reliable. She recollects that in 2012, she first noticed changes in her husband. He became withdrawn and quiet. He often did not eat his dinner and went to bed without interacting or playing with their four sons, or talking much to her. He became more short-tempered and depressed as the year went on. She says that when he was quiet he looked like he was worrying and agitated and if she asked what was wrong, he would start talking about safety at John Holland. The evidence of Mrs Davies suggests to me that the 12-13 February 2012 events caused Mr Davies to become withdrawn and depressed, and to ruminate about other safety concerns in relation to John Holland. In turn, it seems, that led him to suffer a diagnosable mental condition by 2014. 

20. Mr Davies was cross-examined on the account he gave of the incident of 2012. Ms Callan for the respondent put to him material from Mr Lythall’s statement and Mr Davies expressed disgust that such a thing would be said by Mr Lythall, and it was necessary for the proceedings to be adjourned for a short time while he composed himself. He said that he did not remember Mr Brunton being at the site at the time, and steadfastly maintained that Mr Lythall was present and that the incident occurred as he described it.

21. Mr David Brunton also made a statement and was unavailable for cross-examination on it.  He told the respondent’s solicitors that he could not attend the hearing to give evidence on medical grounds, because he said that he has anxiety and a mental illness. He also described himself as a current John Holland employee. I was told that despite attempting to obtain a medical certificate to establish the illness, the respondent had been unable to do so. I was asked to treat his absence as a matter going to the weight of his statement.  I give his statement very little weight in the circumstances. His statement says that he reported to Mr Lythall, which could have made his evidence important. His recollection of the incident was poor, and most of his statement asserts a lack of recollection about material matters. He says that he rather than Mr Lythall was the supervisor on 12 February 2012, but gives no account of the details of the incident. He attaches a statement he made on 13 February 2012, which is similar to the typewritten statement signed by Mr Davies on 13 February 2012. Mr Brunton’s statement contains a denial based on his general practice that he asked Mr Davies to alter a statement. Again, this is curious since Mr Davies had not said that Mr Brunton asked him to alter any statement.

22. I am also satisfied by the oral evidence of Mr Davies that Mr Lythall asked him to prepare another statement concerning the incident, presumably before Mr Davies sat down with Mr Bush. It seems that some of the contents of Mr Davies’ second, handwritten statement were incorporated into the typewritten statement of Mr Davies prepared by Mr Bush, and others were not.

23. Subsequently RailCorp issued a Rolling Stock Technical Note suspending the use of the friction drive based Road Rail vehicles until further notice.  The notice referred to “a recent runaway incident involving a friction drive road rail vehicle operating at Mount Kuring-gai on the RailCorp network and a similar incident occurring in Western Australia”. The Note suggested that the most likely cause of the incident was the wet weather conditions at Mount Kuring-gai “which reduced the friction between the road tyres and the rail friction drums, such that the vehicle was not able to be restrained on the grade.” That Technical Note is not inconsistent with the evidence given by Mr Davies. To describe the incident as a “runaway incident” and to compare it, as the Note did, to the earlier incident in Western Australia which led to a death, suggests that the incident was regarded very seriously by RailCorp.

24. John Holland did its own investigation into the incident and there was tendered a report called an RBI Investigation Report. It describes the events consistently with the typewritten statements of Mr Davies and Mr Brunton, and states that the investigators interviewed Mr Davies and Mr Brunton. Mr Brunton was not called before me. No evidence was led as to what Mr Davies may have said at the interview conducted with him, and he denied speaking to the investigators at any interview. When cross-examined about the Report, Mr Davies reiterated that Mr Brunton was not there on 12 February 2012.

25. A prominent submission made by the respondent in this case is that Mr Davies is and was delusional. I am not prepared to find that Mr Davies’ account of the 12 February 2012 incident is the product of a delusion. Mr Davies from time to time in and prior to 2014 reported safety incidents to his superiors within John Holland. He became concerned when he did not receive feedback from those persons on the matters he reported. He expressed those concerns to Mr Mario Raymond Gauci in April 2014 and Mr Gauci made notes about what he had said and decided to involve his superior Mr Warren Williams. Mr Davies was friendly with Mr Gauci and told him of some personal matters at home which were also concerning him.

26. Mr Williams made a statement and gave oral evidence before me. Mr Williams had a good working relationship with Mr Davies. He says that in March or April 2014 Mr Davies presented as being more remote and “stopped being his happy go lucky self”. On 15 April 2014 Mr Davies and Mr Williams had a telephone discussion in which Mr Davies said that he had notified Comcare (which regulated John Holland) about “180 safety incidents, because John Holland was not a safe place”. He said he had taken his concerns to “people” (presumably within John Holland) but nothing was ever done about it. The incidents listed by Mr Davies to Mr Williams were included in a note made by Mr Williams of 16 April 2014.  He said in the note that he was checking up on some of the incidents with others in John Holland.

27. In late May 2014 the Human Resources team referred Mr Davies to Gryphon Psychology who reported that he should have ongoing counselling but that there were no issues with him returning to the workplace after leave which he took in April.  Mr Davies did return to work and went to the country regional network for a number of days in June 2014, until he went off work again on 13 June 2014. He did not return to work and his general practitioner sent medical certificates indicating that he was suffering from stress and anxiety.

28. Mr Davies’ employment was terminated on 13 April 2015.  As a result of the dismissal, Mr Davies applied to Centrelink and was unable to pay the mortgage on his home, which he lost. Those events have importance to a later worsening of Mr Davies’ condition in 2016.

29. The safety matters drawn to Mr Williams’ attention are not shown by the evidence to be fictional or the product of any delusion. They are all matters connected to the workplace.

30. Mr Williams reported to Mr James Elward, who gave evidence before me.  He prepared a spreadsheet which identified all of the matters mentioned to Mr Williams by Mr Davies, and recorded by Mr Williams in his email of 16 April and some other matters which Mr Davis had identified in correspondence. As the spreadsheet shows, many of the matters in question had been investigated by management and, it appears from the spreadsheet, appropriate remedial or other action was taken. The spreadsheet does not indicate whether or not Mr Davies had been given feedback about the matters insofar as he may have been one of the persons who drew attention to the matters in question.  A number of the matters on the spreadsheet were insufficiently well described to permit Mr Elward to investigate them, without having detailed discussions with Mr Davies. He said that after discussions with the managers that were involved at the time as well, given the circumstances from his claimed condition, it was deemed inappropriate to pursue those matters with him. None of the items in question were characterised as fictional, or the product of any delusion.  

31. Mr Bush, Mr Williams and Mr Elward all asserted that John Holland was careful in its attention to safety matters, and amongst the submissions made by the respondent to me was a submission that Mr Davies’ perception to the contrary was delusional. I am unable to make any finding to that effect.  Mr Davies asserted at the time that he had not received feedback, and there is insufficient evidence to the contrary to enable me to reject that assertion. For the most part, there is other evidence to confirm that the safety and other incidents were real events in the workplace. 

32. These proceedings did not require either party to seek to establish underlying facts about the culture of John Holland and its attitude to safety matters, and while I accept the assertions of company employees mentioned in the previous paragraphs as evidence of their state of mind, I make no general findings about the underlying facts.

33. It is the perceptions of Mr Davies leading to his mental condition during his employment, and the relationship between those perceptions and actual events occurring in the workplace, and the relationship between those perceptions and the condition from which he suffered in April 2014, which is most important in this review.

34. The motivation of Mr Elward and others to examine Mr Davies’ remarks seems to me to have been to prepare John Holland for any enquiry which might have been made by Comcare as the regulator.

1. There were indications in the evidence which Mr Davies gave that his condition, or perhaps, a residual form of it still affects his presentation. That has made my assessment of the reliability of his evidence on some matters more difficult than might otherwise have been the case. As to credibility, I did not discern any evidence that he was dissembling, or answering otherwise than honestly.

   Applicant’s psychological condition

2. The respondent has obtained by summons medical records for the period subsequent to April 2014. For the purposes of this review, both parties used qualified psychiatrists who gave evidence before me. Dr Selwyn Smith was qualified by the applicant and Dr John Champion was qualified by the respondent. Importantly, Dr Champion saw Mr Davies on the day Mr Davies was admitted for ten days to the Blue Mountains District Hospital and there are psychiatric notes from that institution dated on the day following his consultation with Dr Champion, as discussed below.

3. Mr Davies was also cross-examined on the medical records which the respondent obtained.

4. His general practitioner Dr Merchant first saw him about his condition on 7 April 2014.  He records that Mr Davies was having work related stress, his main concern being health and safety at work with John Holland. The notes record that he will see Comcare. The diagnosis was work problems and work related stress. The same diagnosis was repeated on 12 June 2014 when a workers compensation certificate was issued. Stress was referred to in the notes of 30 June 2014 and stress and anxiety was referred to on 17 July and 1 August 2014. On 4 September 2014 he noted anxiety/depression. On 18 September 2014 Dr Merchant contacted the Katoomba mental health team and Dr Fraser, to whom he spoke on 23 September 2014 about a seeming bipolar disorder.

5. Thereafter in 2014 Dr Merchant recorded bipolar affective disorder as the diagnosis, and throughout 2015 he recorded the same diagnosis.

6. Dr Raphael Fraser wrote a number of reports to Dr Merchant between 23 September 2014 and 18 February 2015. He described the hypothesis of bipolar disorder as a working hypothesis in September 2014 and described paranoid themes and concerns that his electronic communications were being monitored, saying that his certainty about it was in excess of its plausible likelihood. In November 2014 Mr Davies’ condition improved and diagnostically Dr Fraser remained unsure whether Mr Davies had a bipolar disorder. In January 2015 he said that Mr Davies was definitely preoccupied with thoughts relating to his employer, and injustice around his reporting of work safety concerns. He said that while these could be seen most plausibly as overvalued, he added: “I do not think I can confidently label them delusion”.

7. By September 2014 the notes at Springwood Community Health Centre record that Mr Davies was no longer receiving an income. He had expressed financial concerns to his general practitioner, including that the mortgage payments were late. Those financial concerns led to the loss of Mr Davies’ home in or before July 2015, and the termination of his employment by the respondent took place in April 2015, and the rejection of his workers compensation claim was notified in January 2015 and confirmed on internal review in April 2015. All these events led to concerns about his family’s future, and all of them appear to me to have progressively contributed to his condition in late 2014 and in the period from 2015-2016. His condition waxed and waned to some extent.  From May to November 2016, in particular, he seems to have been very ill.

8. In March 2015 he was admitted to the Blue Mountains Hospital Mental Health Unit, where he was administered a course of drugs. In May 2016 Dr Fraser saw him again and agreed with his current diagnosis of a delusional disorder, stating that he had minimal insight¸ and presented with ongoing paranoid and persecutory delusions. In June 2016 he found him to be calmer and more engaged and found that his delusional disorder, in terms of the intensity of his preoccupation, was possibly a little improved.

9. As mentioned earlier, Mr Davies was admitted to the Blue Mountains Hospital on 17 October 2016, the same day he saw Dr Champion. Dr Pauline Byrne a psychiatrist from that hospital described him on 18 October 2016 as “mentally ill, delusional and a risk to others and himself”. He was clearly very ill at that time. The notes also include reference to the delusional disorder having been exacerbated by recent amphetamine use.

10. More recently Mr Davies obtained employment with First Disability as a support worker. He takes disabled persons to appointments and on overnight and weekend trips. He also performs in-house care work, helping disabled persons around the house and with personal hygiene. He thinks his job has given him back some motivation. He enjoys having a reason to get up in the morning and getting out of the house and helping other people. He has had a good report from staff at his place of employment. His preoccupation with concerns about John Holland has nevertheless persisted, albeit, I gather, in a less acute form. That concern was evident to me as he gave evidence in the case.

    Dr Selwyn Smith’s medical evidence

11. Dr Smith examined Mr Davies in March 2016 and again in November 2018, between the date of the Brisbane hearing, when I heard from Mr Davies in person, and the Sydney evidence where his cross-examination continued by video-link and the other evidence in the case was called. Dr Smith read the transcript of the Brisbane evidence. In 2016 Dr Smith described his presentation as that of a markedly agitated and angry man. He stated that he experienced difficulties at work because his employer did not take his concerns seriously, and Dr Smith commented that he was particularly distressed over what he described as a number of “near miss” or “critical incidents” in which the health and safety of himself and other workers was placed at risk from approximately 2011 to 2014. He became significantly depressed, socially withdrawn, and developed marked irritability and anger. Mr Davies referred to voluntary and involuntary admissions to a number of psychiatric facilities. He reported being persistently fixated on the events that occurred at his place of work.

12. Dr Smith was unable to detect symptoms consistent with bipolar affective disorder and said that Mr Davies did not reveal delusions, or clinical evidence of hypomanic or manic disorder. Dr Smith preferred a diagnosis of Major Depressive Disorder with psychotic features, and stated that in his opinion, there was a direct relationship between his employment and his psychiatric disorder.

13. On the review in November 2018 Dr Smith found a modicum of agitation about John Holland, by contrast with the degree of anger displayed in 2016. He did not report perceptual disturbances such as hallucinations. He described his memory for the events to which he was exposed as acute. He reviewed the transcript of the October hearing in Brisbane at which Mr Davies gave evidence in person and the summons material that was tendered, including Dr Fraser’s reports.  

14. For his part Dr Smith remained of the view that Mr Davies suffered from a Major Depressive Disorder, and said that while Mr Davies expressed his opinions with unusual persistence or force, he preferred the view that Mr Davies experienced an overvalued idea, rather than a Delusional Disorder. The psychosis which Dr Smith found to be associated with his Major Depressive Disorder was linked to persecutory ideation that may have reached delusional intensity. He remained of the opinion that Mr Davies’ Major Depressive Disorder was the result of occupational stress; a relationship that he said was recognised in the literature.

15. Dr Smith disagreed with a suggestion made by Dr Champion that factors such as Mr Davies’ purported diagnosis of Attention Deficit Hyperactivity Disorder or his earlier use of cannabis and amphetamines contributed to the development of a Delusional Disorder.  He regarded his earlier excellent work record as inconsistent with any such hypothesis.

    Dr John Champion’s medical evidence

16. Dr Champion saw Mr Davies in October 2016 for the respondent, as I have said, on the day before he was seen by Dr Pauline Byrne. He also took a history of Mr Davies’ concerns about work practices within John Holland, delivered in an angry and rather disjointed fashion. He had regard to Dr Smith’s first report. He said that Mr Davies told him that he turned to drugs after he was sacked, but Dr Champion seems to have doubted that the drug use was after he was sacked. 

17. He had difficulties in obtaining details of the chronology of events or the treatment he had received. He interpreted the presence of delusions and the treatment received as strongly suggesting that his condition involved Delusional Psychosis. He considered his presentation to be consistent with an individual who had been significantly delusional and probably continued to harbour persecutory delusions. He diagnosed Mr Davies as having developed a DSM-5 Schizophrenia Spectrum Disorder in the form of a Delusional Disorder of Persecutory subtype. He rejected any relationship between his work, stating that it is generally held to be much more likely to be associated with constitutional factors or lifestyle practices (drugs such as methamphetamine) than to a condition brought about by reaction to circumstances. 

18. Dr Champion observed that methamphetamine and cannabis use and possibly excess alcohol provides a probable basis for the development/precipitation of a Psychotic Delusional Disorder. He observed that another probable contributing factor in this case is the “information provided by Mr Davies of a personality structure with marked ADHD features”.

19. Dr Champion saw the reports of Mr Davies concerning the employment issues as the result of a delusional disorder rather than its cause.

    Concurrent evidence of Dr Smith and Dr Champion

20. I heard from the doctors in joint session on 11 December 2018. Dr Champion identified from the materials the delusions of Mr Davies which he had in mind in formulating his diagnosis and it emerged that the delusions relied upon were bizarre statements made by Mr Davies after he became ill to medical professionals, rather than the allegations he made concerning John Holland. Dr Smith said that he asked Mr Davies concerning the same matters, that is, the remarks made to doctors and others during hospitalisation periods in 2015 and 2016, and elicited that Mr Davies said that John Holland had “given it to me, so I was going to give it back to them. They thought I was crazy, so I’m going to make out that I am crazy”. Mr Davies was cross-examined before me about remarks which he was recorded to have made to medical professionals and he made a similar answer at T109 to that given by Dr Smith. I am not sure that those answers were correct.  However, it is of note that Mr Davies no longer adhered to the remarks as being true. In other words, if he had been delusional, he was no longer adhering to the delusional beliefs.

21. Both doctors were asked questions by counsel about drug use and a hypothesis that Mr Davies may have suffered from ADHD. 

22. The evidence does not satisfy me that there was relevant drug use, and does not satisfy me that Mr Davies suffered from ADHD. Learning difficulties were not apparent, and he was never diagnosed with ADHD. His drug use, if any, prior to his dismissal does not appear to have been substantial, or to have affected his work, according to evidence given by him at T107-108.

23. Dr Fraser in 2014 and for some months afterwards was reluctant to make a diagnosis of any delusional disorder although he later agreed with such a diagnosis. The closeness of time between Dr Champion’s consultation and the remarks made by Dr Byrne in the summonsed material provides strong support for Dr Champion’s opinion as at its date.

24. Stress has been laid by John Holland in submissions on bizarre statements made by Mr Davies to medical staff after his dismissal from work, to seek to submit that his evidence about concerns in the workplace should be found in the Tribunal to be the product of a sick mind, that is, the product of a delusional disorder.

25. In the first place, it seems to me that to relate the matters reported in medical records after his dismissal, when he had lost not only his job but his home may be mistaken. It is clear from the evidence of Dr Smith that in 2016 his condition was worse than it was last November, when Mr Davies was again employed, and happily. He did not exhibit delusional beliefs in evidence before me. The remarks which he made to medical professionals about the government tracking his movements and the like have features not evident during his employment. Secondly, he showed no sign of any constitutional disorder in the years up to 2014.  Nor did his general practitioner attribute his condition in 2014 to other than stress and anxiety.

    Conclusion

26. What is critical in this review is whether Mr Davies suffered from a disease which was contributed to, to a substantial degree, by his employment. That question in my opinion should be answered in the affirmative. It is the effect of his own evidence and that of his wife. It stayed with him in the subsequent years and was a prominent part of what he reported to all the medical practitioners. If in part the things which Mr Davies came to believe about his employer during the years from 2012 to 2014 involved a misapprehension, there was nevertheless a sufficient connection between those things and his employment for it to be the case that the disease was contributed to, to a substantial degree, by his employment. His perceptions stemmed from events which actually happened in the workplace, and ruminating on them led to his condition. See generally Dean v Australian Postal Corporation [2010] FCA 680; (2010) 52 AAR 54 (Perram J) and cases there cited.

27. I am inclined to treat the suggestion of a delusional disorder as something from which he apparently suffered in 2016, and as something from which he no longer suffers, and as something from which he did not suffer in 2014 or over the period from 2012 to 2014. I accept the evidence of Dr Smith as to his current condition, which broadly accords with the 2014 opinion of Dr Merchant, his general practitioner.

    Decision

28. For all of those reasons, the reviewable decision will be set aside and the matter should be reconsidered by the respondent with the direction that Mr Davies has an entitlement to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

29. Pursuant to s 67(8) of the Act I order that the costs of the proceedings incurred by the applicant be paid by the respondent.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

................................[sgd]...................................

Associate

Dated: 15 February 2019

Date(s) of hearing:	29 October 2018 and 10, 11 and 12 December 2018
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Mr I Simic, Taylor & Scott Lawyers
Counsel for the Respondent:	Ms S Callan
Solicitors for the Respondent:	Ms A Bortone, Sparke Helmore Lawyers