Davies, T. A v Commissioner of Australian Federal Police
[1992] FCA 945
•24 Nov 1992
Distribution list for Judgment No. 945/92
JUDGMENT No. 945/92
This judgment number was allocated to a judgment which had already been entered on to the judgment index with the judgment number 390 /92 . Consequently the duplicate copy of that judgment has been removed and the judgment number reallocated to the attached judgment i.e., Davies, T.A. v. Commissioner of Australian Federal Police & Anor.
Elizabeth Harrison Library Services.
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IN THE FEDERAL COURT OF AUSTmIA)
NEW SOUTH WALES DISTRICT REGISTRY) NG 841 of 1991
GENERAL DIVlSION 1 Between: TREVOR ARTHUR DAVIES
Applicant
And: COMMISSIONER OF AUSTRALIAN
FEDERAL POLICE
First respondent
And: -1SSIONER FOR THE
--P - -- SAFETY, REIIABILITATTON AND C O M P E N S A l ' I O N 0 F
COMMOIW-WTfI EMPLOYEESSecond respondent EX TEMPORE JUDGMENT
EINFELD J SYDNEY 24 NOVEMBER 1992 This is an appeal from a decision of the Administrative Appeals Tribunal delivered on 23 October 1991. The matter involves a claim for compensation by a former member of the
Australian Federal Police from the second respondent (Comcare). The matter has been subject to very considerable delays. It is not for me to attribute any culpability for the delays but it is a matter of some concern especially, in a compensation 1
sittiation involving a claim for mental stress or depression, that a claim originally lodged in January 1989 is only being completed almost four years later. The original hearing took place in November 1990. The decision of the Tribunal was given in October 1991 and the appeal only reaches this Court in November 1992. Something must be done to ensure that justice grinds somewhat quicker than that especially in a case of this nature where the maintenance of the litigation itself may well act to exacerbate the suffering of the complainant.
The case is a stressful one in itself. The applicant was
employed by the Australian Federal Police as a police officer
in June 1978 and retired with the rank of deFective senior
" m*
constable, when aged 36, on 20 June 1990. On;7,,;May .- 1988 the applicant was arrested as a result of allegations oY criminal activity made against him by a man named Turnbull, and charged under New South Wales law with demanding money with menaces and with stealing. The amount involved was $10,000 said to be Turnbull's money. Committal proceedings were held on the charges at the Castlereagh Street Local Court, and on 22 December 1988 a magistrate, having found a prima facie case, concluded that a jury would not be likely to convict the applicant and dismissed the charges. It is not entirely clear
police force after that date, except that for some time at to me to what extent the applicant actually served in the least, he apparently fulfilled the job of a uniformed police
officer at Parramatta Family Court.The facts concerning the alleged criminal activity of the applicant were litigated before the Tribunal and its determination deals in some detail with the evidence it heard. The applicant's allegations are that the combination of his investigation by the Internal Investigation Division of the Federal Police, his charging by the New South Wales Police, and the hearing before the magistrate, in sum caused him stress and anxiety. As a consequence, he has been suffering from an anxiety state and secondary depression since 1989 which ultimately caused him to be incapacitated for work.
Because of the detail which the Tribunal has included in its analysis of the evidence, and because the only appeal that can come to this Court from the Tribunal's determination is on a question of law, there is no need for me to detail all the facts. It will suffice for present purposes to say that the Tribunal undertook a consideration of whether the applicant or Turnbull was to be believed in relation to the exchanges which went on between them.
Turnbull's allegation was that the applicant pressured him to pay over the $10,000 in return for the applicant withholding any reporting or charging of Turnbull for what the applicant
certain videotaped movies. The applicant's allegation was suggested were criminal activities by Turnbull associated with that the association between himself and Turnbull was part of an investigation being conducted by the applicant, amongst other police officers, of some criminal activity involving one or more other persons.
It will suffice for present purposes to record that the Tribunal quite clearly came to the conclusion that Turnbull's account should be accepted and that the applicant's evidence should be rejected. In doing so, the Tribunal considered the assertions of the applicant that Turnbull was setting up the applicant for some adversity with the motive of attempting to protect an associate of Turnbull's from the possibility of criminal charges at the hands or on the initiative of the applicant. The Tribunal rejected the assertion of the set up and rejected the motive.
It is not now open to me to review those findings of fact both because the law forbids it and also because, having not seen the relevant protagonists, it would be impossible. I therefore start this appeal from the standpoint that the Tribunal found on the balance of probabilities that the applicant, having demanded the money by menaces, extorted or stole it from Turnbull. This finding by the Tribunal is not contrary to the finding of the magistrate, nor was it anything in the nature of a second trial of the issues which the magistrate dismissed. It was a finding by the Tribunal of one
conclusion about the applicant's claim for compensation. It of the matters it had to determine in order to come to a arose in the following way. By section 14(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (the Act), Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. By section 4 of the ~ c t
"injury suffered by an employee" is defined in part as physical or mental injury arising out of or in the course of the employee's employment. Hence if the applicant is or was suffering from an employment-caused or induced anxiety state, and if the anxiety state results in his incapacity for work, he is entitled to compensation.
However, section 14 provides two significant exceptions to the entitlement. Subsection (2) excludes entitlement if the injury is intentionally self-inflicted. That is not this case. Subsection (3) excludes compensation if the injury is caused by the serious and wilful misconduct of the employee except in a case where the injury results in death or serious and permanent impairment. In other words, if the injury is caused by the serious and wilful misconduct of the employee, compensation is only payable if the injury resulted in death or serious and permanent impairment. The Tribunal found that there was no serious and permanent impairment, in particular that the impairment was not permanent. It was thus left with
a question as to whether the anxiety state was caused by the serious and wilful misconduct of the employee. The only medical evidence of any significance which was before the Tribunal on the issue of causation was the evidence of Dr Maguire, a specialist psychiatrist who was retained by Comcare to examine the applicant. Based upon the history which the applicant had given him, Dr Maguire Formed the opinion that what the applicant had gone through in terms of his investigation, charging and court proceedings had caused an acute anxiety state with several further episodes of relapse but that he was psychologically well and fit for work. Dr Maguire went on to suggest that if the applicant was continually investigated or, as he put it, "if he continues to perceive himself as harassed", he might develop a chronic anxiety state as a result of anticipation of the ongoing harassment and investigation.
As it turns out, the applicant has left the police force and Dr Maguire has made no finding that he suffers from this chronic condition. However, the basic underlying premise of Dr Maguire's evidence, as it is of all non-treating specialists in similar circumstances, is the acceptance of the applicant's history. As I have summarised, the relevant history was of unjustified investigation and completely unmerited harassment including subjection to unsuccessful charges. Although the charges were instituted by the New South Wales Police and not by his employer, for present
purposes the prosecution of the charges can be accepted to be part of a series of events which can be laid at the feet of his employer. The Tribunal thus had evidence that the applicant was suffering from an anxiety state and that the anxiety state was brought on by the internal investigation and by the other forms of employer harassment, including the charging by the New South Wales Police. However, as Dr Maguire had no history that the investigation and the charging came about through the matters asserted by Turnbull which the Tribunal accepted as fact, the Tribunal was not in a position from the doctor's evidence to determine that the applicant's anxiety state was due to the correct and truthful position. Of course its Act and authority are clear that the Tribunal is not to impose an onus of proof as such on any party.
This state of the psychiatric evidence will ordinarily, and in this case did, remove the basis for any determination that the applicant was suffering from any injury at all, let alone an injury within the meaning of the Act. In other words, if an anxiety state is determined or concluded to have existed because of certain events, and those events are found not to have occurred, then there is no basis for making a finding that the condition itself actually ever existed. It is important in this regard to emphasise that an anxiety state is a psychological condition and that Dr Maguire's evidence and report on the matter indicate that it was brought on by the
investigated and charged with offences. applicant's sense that he had been wronged by being wrongly Notwithstanding that the magistrate found that a jury would not convict, it was for the Tribunal to satisfy itself as to whether the basis for Dr Maguire's opinion was supported by the facts of the case. It decided that there was no such
basis. As a consequence, the Tribunal concluded at page 454 that: We have not thought it necessary or appropriate to make findings as to the nature and cause of the applicant's condition.
What was actually meant by this expression was that the Tribunal did not need to find whether the applicant was suffering from an anxiety state and, if so, what was its cause. In fact, by determining that the history given to Dr Maguire was wrong, the Tribunal was finding that there was no evidence that the applicant had suffered an injury within the meaning of sections 4 and 14 of the Act. This is because there was no basis for a finding that he in fact suffered an anxiety state arising out of or in the course of his employment because the factual basis for the only opinion of any standing or weight presented to this effect had collapsed by reason of the findings of fact as to what had occurred.
The Tribunal went on at page 455 to say:
Any stress or anxiety experienced by the respondent
arrest and subsequent internal investigation is and associated in the respondent's mind with his
stress and anxiety brought about by his own serious
and wilful misconduct.
This was a finding that if the applicant was suffering from an anxiety state, it was brought about by his own serious and wilful misconduct and therefore the injury was not compensable by reason of the operation of section 14(3).
This finding is challenged by the applicant before this Court. It is said first that the Tribunal asked itself the wrong question when it faced the issue. The applicant says that when at page 448 the Tribunal said:
The applicant's objection to the respondent's claim for compensation benefits requires the Tribunal to
determine the probable truth or falsity of serious
allegations made against him.
and when it said further at page 450:
In determining this matter the Tribunal must decide whether to believe the respondent's version of the events or Turnbull 'S. If Turnbrlll 'S version of events is accepted then the respondent's conduct in this matter clearly amounts to serious and wilful misconduct within section 14 (3).
the Tribunal engaged in an undertaking of irrelevancy and put
the cart before the horse.
Before he embarked on the argument as to why this approach was
wrong, I asked applicant's counsel what he contended was the right question and the answer was given: Did the cause of the injury amount to serious and
wilful conduct 7
In other words, was the anxiety state - assuming for present purposes that there was one - brought about by the applicant's own misconduct? It is clear that the Tribunal not only made a finding on this matter but that it is its central finding.
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The Tribunal's conclusion was that if there was an anxiety state - which for these purposes it assumed - it was brought about by the events which flowed from the facts which the Tribunal determined had occurred in the relationship between the applicant and Turnbull.
Hence, if there was something mistaken about the problem or question which the Tribunal posed for itself - and for myself I cannot see that there was any such error - then when the right question according to the applicant was asked, the answer has been given, namely, that serj.ous and wilful misconduct, which the Tribunal found as a fact had been committed, brought about any anxiety state from which he was suffering. It is therefore not necessary for me to analyse any further whether, if the Tribunal posed the wrong question, it therefore came to the wrong answer in the case.
The second submission was that the Tribunal had misconstrued the meaning of "serious and wilful misconduct" as used in
applicant had committed the misconduct as required by that section 14(3) and that there was in fact no evidence that the subsection. A definition was put forward, said to have been based on Western Australian authority, that "serious" in this context means "a tendency to increase the risk of injury to
himself " . The term "serious and wilful misconduct" in a compensation sense has been analysed on many occasions and there is nothing that I can now add to the elaboration of that term which would be of any assistance at all. It is a well known phrase, it should not be subjected to dissection, and its ramifications are well established by the authorities. However it is defined, it would be to my mind quite impossible to uphold a proposition that a finding that a serving police officer who had forced a member of the public to pass over to him for personal use and enrichment $10,000 of that person's own money on a pretence or pretext that were he not to do so, that person would or may suffer unjustified serious criminal repercussions, did not amount to serious and wilful misconduct.
Even on the definition put forward by the applicant, a person subjecting himself to or undertaking such activity may well have a tendency to increase the risk that he would come by an anxiety state or depression. Purely as a layman, I can well imagine that if a person so conducts himself as a police officer that he finds himself under investigation and charge
this, he may very well suffer stress. So that even by the for stealing somebody else's money in circumstances such as applicant's own definition, this misconduct would fall within the meaning of the statute. But it is really not necessary to go into such niceties. It is not possible to suggest that serious and wilful misconduct in a compensation sense, when applied to a police officer, would not involve or was not embraced by activity which the tribunal of fact accepted in this case.
The third submission is that there was no evidence of causation. This was a strange submission coming from the applicant. The applicant original3 y lodged his claim for compensation asserting a causal nexus between an anxiety state and certain features of his employment. Originally the appropriate authority in Comcare found that the available evidence was unsatisfactory and disallowed the claim. Upon a reconsideration, Comcare determined that there was a liability to pay compensation which the Federal Police applied to the Tribunal to review. The Tribunal held, in the ways I have indicated, that the factual basis for the only evidence of any significance on both the condition and its cause had collapsed, because the facts were not proved in evidence.
In those circumstances a submission that there was no evidence of causation is not relevant to the present proceedings. It is not a question of onus of proof, it is a question of what the evidence establishes. In the light of the findings of the Tribunal, there was in fact no evidence of any injury, so
there could be no evidence of a causal relationship between the injury and the work. There was also no evidence before the Tribunal, which it was willing to accept, that if there was an anxiety state, it was caused by any indices or characteristics of his employment. Thus there could be no evidence of a causal nexus in that connection either, because the Tribunal found that if there was a condition, it was caused by the misconduct of the applicant. That finding was hypothetical in the circumstances because the Tribunal did not
- '13 -
find that there was any such anxiety state in the first instance. Hence, whatever the applicant's submission might be taken as meaning, it cannot result in any upsetting of the Tribunal's conclusions.
It is true of course that section 14(3) does not involve the Tribunal in a finding of serious and wilful misconduct in the abstract. That is, it is not to the point that some misconduct or nefarious activity might be serious and wilful in some circumstances but not in others. In this type of case, the Tribunal does not conduct a general investigation into whether the applicant was guilty of any crime, nor does it hold an inquiry into whether he committed serious and wilful misconduct in some other sense than that in which the phrase is used in the present statute. The required exercise here was merely an investigation as to whether the conduct alleged by Turnbull and denied by the applicant took place. If it did, serious and wilful misconduct occurred, and there is no entitlement to compensation if that factual finding so
changes the basis of the medical evidence as to deny the applicant the evidence that the alleged employment injury within the meaning of the Act occurred. The finding of the Tribunal on page 455 to which I referred was really a gloss on the case. It made an assumption in favour of the applicant that he was suffering from an anxiety state, and then made a finding that it was caused by the behaviour which Turnbull's evidence had established to the satisfaction of the Tribunal had occurred.
In the notice of appeal, the applicant gives four grounds. The first is that the Tribunal failed to consider the scope of the exclusion under section 14(3) and the question of entitlement. I have dealt with that matter. The second is that the Tribunal conducted a hearing similar to the committal hearing canvassing all the issues which had been dealt with there and resulting in the applicant not having to stand trial. I am not sure what is suggested to follow even if this assertion were made good, but it is not what the Tribunal did at all. To the extent to which it did undertake a similar hearing to the committal hearing, it was a necessary concomitant and consequence of the duties which the Act imposes on the Tribunal in a case such as this with the facts as they are here.
The third ground given was that the Tribunal ignored the fact that despite internal investigation by the Federal Police, nothing was found to proceed with any disciplinary action against the applicant. To my way of thinking, if the Tribunal
that it did - it would have been completely irrelevant to the had considered that fact - and I cannot see from the decision task it had to undertake. It is not a question for the Tribunal to decide whether the Federal Police should or should not have taken disciplinary action against the applicant, but whether there was evidence which could be accepted that the applicant had committed serious and wilful misconduct within the meaning of section 14(3).
The fourth ground was that the Tribunal failed to address the question of causation of the anxiety state and considered this not necessary by reason of its unwarranted belief that the applicant had been guilty of the alleged crime. I have dealt with the question of causation. There is no basis for an assertion that the Tribunal failed to address this important question arising under the Act because it believed that the applicant had been guilty of the charges which had been dismissed. The Tribunal was in fact, I think, careful to ensure that it did not subject the applicant to a second hearing of the criminal offences, limiting itself to a determination of whether he had committed serious and wilful conduct within the meaning of section 14(3). Whether the Tribunal believed that the applicant was guilty of any crime is irrelevant. There is no reason for determining that it allowed any such belief to enter into j.ts investigation of the matter or that it was misled or diverted by any such belief.
The Tribunal was required to consider the evidence on the
question of the entitlement of the applicant to compensation. issues which the parties wished to have litigated on the It was required to make a finding as to whether there was an injury which arose out of or in the course of the employment and whether any such injury was caused by the serious and wilful misconduct of the employee in circumstances where the resulting impairment was not serious or permanent. As I see it, it undertook each of those tasks competently and although, as might not be unexpected in a complex and difficult matter of this kind, there is occasional merging of these various issues in the expressions which it used, an analysis of its determination makes clear that its findings were adverse to the applicant because of the basic finding of fact that the assertions of Turnbull were probably correct and that the denials and assertions of tile applicant were probably incorrect. This led to the conclusion that there was no evidence of an injury which arose out of or in the course of the employment, or if there was one, it was caused by his own serious and wilful misconduct. I can see no basis at all for upsetting the decision of the Tribunal and the appeal will therefore be dismissed.
RECORDED NOT TRANSCRIBED The applicant will pay the respondent's costs of the appeal.
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JUDGMENT No. ........ ........ .. I ........ . ...
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IN THE FEDERAL COURT OF AUSTRALIA)
NEW SOUTH WALES DISTRICT REGISTRY) NG 841 of 1991
GENERAL DIVISION 1 Between: TREVOR ARTAUR DAVIES
Applicant
And: COMMISSIONER OF AUSTRALIAN
FEDERAL POLICE
First respondent
And: COMMISSIONER FOR THE
SAFETY. REHABILITATION AND
C O M P E N S A T I O N
COMMONwEAJX"l' EMPIPLO-
Second responded gRF, f i
EINPELD J SYDNEY 2. , /+ ,U
This is an appeal by the respondents from a decision of the Administrative Appeals Tribunal delivered on 23 October 1991. The matter involves a claim for compensation by a former
member of the Australian Federal Police from the second respondent (Comcare). The matter has been subject to very considerable delays. It is not for me to attribute any culpability for the delays but it is a matter of some concern, especially in a compensation situation involving a claim for mental stress or depression, -
that a claim originally lodged in January 1989 is only being completed almost four years later. The original hearing took place in November 1990. The decision of the Tribunal was given in October 1991 and the appeal only reaches this Court in November 1992. Something must be done to ensure that justice grinds somewhat quicker than that especially in a case of this nature where the maintenance of the litigation itself may well act to exacerbate the suffering of the complainant.
The case is a stressful one in itself. The applicant was
employed by the Australian Federal Police as a police officer
in June 1978 and retired with the rank of detective senior
constable, when aged 36, on 20 June 1990. On 7 May 1988 the
applicant was arrested as a result of allegations of criminal
activity made against him by a man named Turnbull, and charged
under New South Wales law with demanding money with menaces
. d
and with stealing. The amount involved was $10,000 said to be Turnbull's money. Committal proceedings were held on the charges at the Castlereagh Street Local Court, and on 22 December 1988 a magistrate, having found a prima facie case, concluded that a jury would not be likely to convict the applicant and dismissed the charges. It is not entirely clear
police force after that date, except that for some time at to me to what extent the applicant actually served in the least, he apparently fulfilled the job of a uniformed police
officer at Parramatta Family Court.The facts concerning the alleged criminal activity of the applicant- were litigated before the Tribunal and its determination deals in some detail with the evidence it heard. The applicant's allegations are that the combination of his investigation by the Internal Investigation Division of the
Federal Police, his charging by the New South Wales Police, and the hearing before the magistrate, in sum caused him stress and anxiety. As a consequence, he has been suffering from an anxiety state and secondary depression since 1989 which ultimately caused him to be incapacitated for work.
Because of the detail which the Tribunal has included in its analysis of the evidence, and because the only appeal that can come to this Court from the Tribunal's determination is on a question of law, there is no need for me to detail all the facts. It will suffice for present purposes to say that the Tribunal undertook a consideration of whether the applicant or Turnbull was to be believed in relation to the exchanges which went on between them.
Turnbull's allegation was that the applicant pressured him to pay over the $10,000 in return for the applicant withholding any reporting or charging of Turnbull for what the applicant
certain videotaped movies. The applicant's allegation was suggested were criminal activities by Turnbull associated with that the association between himself and Turnbull was part of an investigation being conducted by the applicant, amongst other police officers, of some criminal activity involving one or more other persons.
-
It will suffice for present purposes to record that the Tribunal quite clearly came to the conclusion that Turnbull's account should be accepted and that the applicant's evidence should be rejected. In doing so, the Tribunal considered the assertions of the applicant that Turnbull was "setting up" the applicant for some adversity with the motive of attempting to protect an associate of Turnbull's from the possibility of criminal charges at the hands or on the initiative of the applicant. The Tribunal rejected the assertion of the "set up" and rejected the motive.
It is not now open to me to review those findings of fact both because the law forbids it and also because, having not seen the relevant protagonists, it would be impossible. I therefore start this appeal from the standpoint that the Tribunal found on the balance of probabilities that the applicant, having demanded the money by menaces, extorted or stole it from Turnbull. This finding by the Tribunal is not contrary to the finding of the magistrate, nor was it anything in the nature of a second trial of the issues which the magistrate dismissed. It was a finding by the Tribunal of one
of the matters it had to determine in order to come to a
conclusion about the applicant's claim for compensation. It
arose in the following way. By section 14(1) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (the Act), Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. By section 4 of the Act "injury suffered by an employee" is defined in part as physical or mental injury arising out of or in the course of the employee's employment. Hence if the applicant is or was suffering from an employment-caused or induced anxiety state, and if the anxiety state results in his incapacity for work, he is entitled to compensation.
However, section 14 provides two significant exceptions to the entitlement. Subsection (2) excludes entitlement if the injury is intentionally self-inflicted. That is not this case. Subsection (3) excludes compensation if the injury is caused by the serious and wilful misconduct of the employee except in a case where the injury results in death or serious and permanent impairment. In other words, if the injury is caused by the serious and wilful misconduct of the employee, compensation is only payable if the injury resulted in death or serious and permanent impairment. The Tribunal found that there was no serious and permanent impairment, in particular that the impairment was not permanent. It was thus left with
a question as to whether the anxiety state was caused by the serious and wilful misconduct of the employee. The only medical evidence of any significance which was before the Tribunal on the issue of causation was the evidence of Dr Maguire, a specialist psychiatrist who was retained by Comcare to examine the applLcant. Based upon the history which the applicant had given him, Dr Maguire formed the opinion that what the applicant had gone through in terms of his investigation, charging and court proceedings had caused an acute anxiety state with several further episodes of relapse but that he was psychologically well and fit for work. Dr Maguire went on to suggest that if the applicant was continually investigated or, as he put it, "if he continues to perceive himself as harassed", he might develop a chronic anxiety state as a result of anticipation of the ongoing harassment and investigation.
As it turns out, the applicant has left the police force and Dr Maguire has made no finding that he suffers from this chronic condition. However, the basic underlying premise of Dr Maguire's evidence, as it is of all non-treating specialists in similar circumstances, is the acceptance of the applicant's history. As I have summarised, the relevant history was of unjustified investigation and completely unmerited harassment including subjection to unsuccessful charges. Although the charges were instituted by the New South Wales Police and not by his employer, for present
part of a series of events which can be laid at the feet of purposes the prosecution of the charges can be accepted to be his employer. The Tribunal thus had evidence that the applicant was suffering from an anxiety state and that the anxiety state was brought an by the internal -investigation and by the other forms of employer harassment, including the charging by the New South Wales Police. However, as Dr Maguire had no history that the investigation and the charging came about through the matters asserted by Turnbull which the Tribunal accepted as fact, the Tribunal was not in a position from the doctor's evidence to determine that the applicant's anxiety state was due to the correct and truthful position. Of course its own Act and authority are clear that the Tribunal is not to impose an onus of proof as such on any party.
This state of the psychiatric evidence will ordinarily, and in this case did, remove the basis for any determination that the applicant was suffering from any injury at all, let alone an injury within the meaning of the Act. In other words, if an anxiety state is determined or concluded to have existed because of certain events, and those events are found not to have occurred, then there is no basis for making a finding that the condition itself actually ever existed. It is important in this regard to emphasise that an anxiety state is a psychological condition and that Dr Maguire's evidence and report on the matter indicate that it was brought on by the
applicant's sense that he had been wronged by being wrongly investigated and charged with offences. Notwithstanding that the magistrate found that a jury would not convict, it was for the Tribunal to satisfy itself as to whether the basis for Dr Maguire's opinion was supported by the facts- of the case. It -decided that there was no such
basis. As a consequence, the Tribunal concluded at page 454 that: We have not thought it necessary or appropriate to make findings as to the nature and cause of the applicant's condition.
[This reference to the applicant was to Mr Davies who was in fact the respondent before the Tribunal.] What was actually meant by this expression was that the Tribunal did not need to find whether the applicant was suffering from an anxiety state and, if so, what was its cause. In fact, by determining that the history given to Dr Maguire was wrong, the Tribunal was finding that there was no evidence that the applicant had suffered an injury within the meaning of sections 4 and 14 of the Act. This is because there was no basis for a finding that he in fact suffered an anxiety state arising out of or in the course of his employment because the factual basis for the only opinion of any standing or weight presented to this effect had collapsed by reason of the findings of fact as to what had occurred.
The Tribunal went on at page 455 to say:
Any stress or anxiety experienced by the respondent and associated in the respondent's mind with his arrest and subsequent internal investigation is stress and anxiety brought about by his own serious and wilful misconduct.
This was a finding that if the applicant was suffering from an
anxiety state, it was brought about by his own serious and
-
wilful misconduct and therefore the injury was not compensable
by reason of the operation of section 14(3).This finding is challenged by the applicant before this Court.
It is said first that the Tribunal asked itself the wrong
question when it faced the issue. The applicant says that
when at page 448 the Tribunal said:The applicant 'S objection to the respondent's claim for compensation benefits requires the Tribunal to determine the probable truth or falsity of serious allegations made against him.
and when it said further at page 450:
In determining this matter the Tribunal must decide whether to believe the respondent's version of the events or Turnbull 'S. If Turnbull's version of events is accepted then the respondent's conduct in this matter clearly amounts to serious and wilful misconduct within section 14 (3).
the Tribunal engaged in an undertaking of irrelevancy and put
the cart before the horse.
Before he embarked on the argument as to why this approach was
wrong, I asked applicant's counsel what he contended was the right question and the answer was given: Did the cause of the injury amount to serious and
wilful misconduct 7
In other words, was what Turnbull said the applicant did a
matter of - serious and wilful -misconduct? I t is clear that
the Tribunal not only made findings on this matter but that
they are central findings.The Tribunal's conclusion was that if there was an anxiety state - which for these purposes it assumed - it was brought about by the events which flowed from the facts which the Tribunal determined had occurred in the relationship between the applicant and Turnbull. Hence, if there was something mistaken about the problem or question which the Tribunal posed for itself - and for myself I cannot see that there was any such error - then when the right question according to the applicant was asked, the answer has been given, namely, that serious and wilful misconduct was in fact committed, and it brought about any anxiety state from which the applicant was suffering. It is therefore not necessary for me to analyse any further whether, if the Tribunal posed the wrong question, it therefore came to the wrong answer in the case.
h The second submission, ivhich is at best a variant on the ...--
-- -. ... . . - -. - - -
"9 ' 8 --
| ' | (first' | was that the Tribunal had misconstrued the meaning of |
| L, | ' 1 |
'i
"~'er&~us and wilful misconduct" as used in section 14(3) and that there was in fact no evidence that the applicant had
definition was put forward, said to have been based on Western committed the misconduct required by that subsection. A Australian authority, that "serious" in this context means "a tendency to increase the risk of injury to himself".
The term "serious and wilful misconduct" in a compensation sense has-been analysed on many occasions and there is nothing that I can now add to the elaboration of that term which would be of any assistance at all. It is a well known phrase, it should not be subjected to dissection, and its ramifications are well established by the authorities. However it is defined, it would be to my mind quite impossible to uphold a proposition that a finding that a serving police officer who had forced a member of the public to pass over to him for personal use and enrichment $10,000 of that person's own money on a pretence or pretext that were he not to do so, that person would or may suffer unjustified serious criminal repercussions, did not amount to serious and wilful misconduct.
Even on the definition put forward by the applicant, a person subjecting himself to or undertaking such activity may well have a tendency to increase the risk that he would come by an anxiety state or depression. Purely as a layman, I can well imagine that if a person so conducts himself as a police officer that he finds himself under investigation and charge for stealing somebody else's money in circumstances such as this, he may very well suffer stress. So that even by the
the meaning of the statute. But it is really not necessary to applicant's own definition, this misconduct would fall within go into such niceties. It is not possible to suggest that serious and wilful misconduct in a compensation sense, when applied to a police officer, would not involve or was not embraced by activity which the tribunal of fact accepted in this case,
The third submission was that there was no evidence of causation. This was a strange submission coming from the applicant. The applicant originally lodged his claim for compensation asserting a causal nexus between an anxiety state and certain features of his employment. Originally the appropriate authority in Comcare found that the available evidence was unsatisfactory and disallowed the claim. Upon a reconsideration, Comcare determined that there was a liability to pay compensation which the Federal Police applied to the Tribunal to review. The Tribunal held, in the ways I have indicated, that the factual basis for the only evidence of any significance on both the condition and its cause had collapsed, because the facts were not proved in evidence.
In those circumstances a submission that there was no evidence of causation is not relevant to the present proceedings. It is not a question of onus of proof, it is a question of what the evidence establishes. In the light of the findings of the Tribunal, there was in fact no evidence of any injury, so
the injury and the work. There was also no evidence before there could be no evidence of a causal relationship between the Tribunal, which it was willing to accept, that if there was an anxiety state, it was caused by any indices or characteristics of his employment. Thus there could be no evidence of a causal nexus in that connection either, because the Tribunal found that if .there was a condition, it was caused by the misconduct of the applicant. That finding was hypothetical in the circumstances because the Tribunal did not find that there was any such anxiety state in the first instance. Hence, whatever the applicant's submission might be taken as meaning, it cannot result in any upsetting of the Tribunal's conclusions.
It is true of course that section 14(3) does not involve the Tribunal in a finding of serious and wilful misconduct in the abstract. That is, it is not to the point that some misconduct or nefarious activity might be serious and wilful in some circumstances but not in others. In this type of case, the Tribunal does not conduct a general investigation into whether the applicant was guilty of any crime, nor does it hold an inquiry into whether he committed serious and wilful misconduct in some other sense than that in which the phrase is used in the present statute. The required exercise here was merely an investigation as to whether the conduct alleged by Turnbull and denied by the applicant took place. If it did, serious and wilful misconduct occurred, and there is no entitlement to compensation if that factual finding so
changes the basis of the medical evidence as to deny the applicant the evidence that the alleged employment injury within the meaning of the Act occurred. The finding of the Tribunal on page 455 to which I referred was really a gloss on
the case. It made an assumption in favour of the applicant that he was suffering from an anxiety state, and then made a finding that it was caused by. the behaviour - the serious and
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--. wilful misconduct -.which Turnbull's evidence had established --. .-. .-
to the satisfaction of the Tribunal had occurred. The first is that the Tribunal failed to consider the scope of the exclusion under section 14(3) and the question of entitlement. I have dealt with that matter. The second is that the Tribunal conducted a hearing similar to the committal hearing canvassing all the issues which had been dealt with there and resulting in the applicant not having to stand trial. I am not sure what is suggested to follow even if this assertion were made good, but it is not what the Tribunal did at all. To the extent to which it did undertake a similar hearing to the committal hearing, it was a necessary concomitant and consequence of the duties which the Act imposes on the Tribunal in a case such as this with the facts as they are here.
The third ground given was that the Tribunal ignored the fact that despite internal investigation by the Federal Police, nothing was found to proceed with any disciplinary action against the applicant. To my way of thinking, if the Tribunal
had considered that fact - and I cannot see from the decision that it did - it would have been completely irrelevant to the task it had to undertake. It was not for the Tribunal to decide whether the Federal Police should or should not have taken disciplinary action against the applicant, but whether there was evidence which could be accepted that the applicant had committed serious and wilful misconduct within the meaning of section 14(3).
The fourth ground was that the Tribunal failed to address the question of causation of the anxiety state and considered this not necessary by reason of its unwarranted belief that the applicant had been guilty of the alleged crime. I have dealt with the question of causation. There is no basis for an assertion that the Tribunal failed to address this important question arising under the Act because it believed that the applicant had been guilty of the charges which had been dismissed. The Tribunal was in fact, I think, careful to ensure that it did not subject the applicant to a second hearing of the criminal offences, limiting itself to a determination of whether he had committed serious and wilful conduct within the meaning of section 14(3). Whether the Tribunal believed that the applicant was guilty of any crime is irrelevant. There is no reason for determining that it allowed any such belief to enter into its investigation of the matter or that it was misled or diverted by any such belief.
The Tribunal was required to consider the evidence on the
question of the entitlement of the applicant to compensation. issues which the parties wished to have litigated on the It was required to make a finding as to whether there was an injury which arose out of or in the course of the employment and whether any such injury was caused by the serious and wilful misconduct of the employee in circumstances where the resulting -impairment was not serious or permanent. As I see it, it undertook each of those tasks competently and although, as might not be unexpected in a complex and difficult matter of this kind, there is occasional merging of these various issues in the expressions which it used, an analysis of its determination makes clear that its findings were adverse to the applicant because of the basic finding of fact that the assertions of Turnbull were probably correct and that the denials and assertions of the applicant were probably incorrect. This led to the conclusion that there was no evidence of an injury which arose out of or in the course of the employment, or if there was one, it was caused by his own serious and wilful misconduct. I can see no basis at all for upsetting the decision of the Tribunal and the appeal will therefore be dismissed.
RECORDED NOT TRANSCRIBED The applicant will pay the respondent's costs of the appeal.
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.I certify that th~s and the F- :preced~ng pages are a true copy of the
',Reasons for ~ud&ii l i%+e~n of h ~ s Honour
. Just~ce Elnfeld
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