De Tarle v Comcare

Case [2022] FCA 175

FEDERAL COURT OF AUSTRALIA

De Tarle v Comcare [2022] FCA 175

Appeal from: De Tarle and Comcare [2021] AATA 94
File number(s): NSD 160 of 2021
Judgment of: ABRAHAM J
Date of judgment: 4 March 2022
Catchwords: WORKER’S COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal (Tribunal) – where Tribunal found applicant not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where applicant suffered from pre-existing mental health conditions – where Tribunal found applicant ceased taking antidepressant medication during the course of employment – whether Tribunal misapplied the test for “injury” in the context of the SRC Act – Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468, Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 and State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 considered – whether Tribunal failed to consider the “eggshell skull rule” – whether Tribunal denied applicant procedural fairness by taking into account information not raised at the hearing –whether Tribunal took into account irrelevant issues – whether Tribunal’s reasons are inconsistent – no error established – application dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5B, 7, 14

Workers’ Compensation Act 1926-60 (NSW) s 6(1)
Cases cited:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538

Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510

Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) [1980] FCA 117; (1980) 47 FLR 131

Browne v Dunn (1893) 6 R. 67 (H.L)

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

De Tarle and Comcare (Compensation) [2021] AATA 94

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Jagelman v Federal Commissioner of Taxation (1995) 31 ATR 467

Karabolovska v Comcare [2019] FCA 2153

Kirkpatrick v Commonwealth (1985) 9 FCR 36

McMullen v Commissioner for Superannuation (1985) 61 ALR 189

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590

Prain v Comcare [2017] FCAFC 143; (2017) 256 FCR 65

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Re Whitlock and Comcare [2020] AATA 1353

State Transit Authority of New…

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Details
AGLC
De Tarle v Comcare [2022] FCA 175
Case
[2022] FCA 175
Decision Date

CaseChat Overview and Summary

In the matter of De Tarle v Comcare, the applicant sought review of a decision by the Administrative Appeals Tribunal (AAT) that found him not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant, who had a history of mental health issues, alleged that his psychiatric condition had worsened during his employment with the Australian Securities and Investments Commission (ASIC). The applicant claimed that this deterioration was due to unreasonable administrative actions taken by ASIC in respect of his employment. The primary issue for the court was to determine whether the AAT erred in its application of the relevant statutory tests for an "injury" and whether it failed to adhere to principles of procedural fairness or took into account irrelevant issues in reaching its decision.

The court considered whether the AAT misapplied the test for “injury” as established in previous cases such as Military Rehabilitation and Compensation Commission v May, Federal Broom Co Pty Ltd v Semlitch, and State Transit Authority of New South Wales v Chemler. The court also examined whether the AAT failed to consider the “eggshell skull rule,” which acknowledges that a person may suffer a more serious injury than another in the same circumstances due to pre-existing conditions. Furthermore, the court assessed if the AAT denied the applicant procedural fairness by considering information not raised at the hearing, and whether the AAT’s reasons were inconsistent. After thorough analysis, the court found no error in the AAT's decision.

The court dismissed the application, finding that the AAT had properly applied the statutory framework and was not in error in its determination. The Tribunal’s finding that the applicant ceased taking his antidepressant medication during the course of employment was upheld, and this fact was considered relevant in assessing the aggravation of his pre-existing psychiatric condition. The court concluded that the Tribunal's reasons were consistent and that no procedural unfairness or irrelevant considerations were involved. Consequently, the applicant's appeal was dismissed, and the costs of the application were to be paid by the applicant to the respondent.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs, to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons below, the application is dismissed.Tribunal decision After setting out the statutory framework, the Tribunal found that during the applicant’s employment he had suffered a significant pre-existing psychiatric condition described as Chronic (Persistent) Major Depression associated with underlying personality Dysfunction/Disorder: at [14]. It was accepted that this condition qualified as an “ailment” for the purposes of s 4(1) of the SRC Act: at [15]. The Tribunal at [19] identified the key issues as follows:i)during the period of his employment with ASIC, did Mr De Tarle suffer an aggravation of his pre-existing psychiatric condition; and, if so ii)was the aggravation of his pre-existing psychiatric condition contributed to, to a significant degree, by Mr De Tarle’s employment; and, if so iii)was the aggravation of his pre-existing psychiatric condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr De Tarle’s employment with ASIC. The Tribunal reviewed the relevant evidence in detail: at [20]-[75]. This included statements from Mr De Tarle and various managers at ASIC who had worked with him, relevant medical records (some of which were produced by summons), including reports from consultant psychiatrists, and oral evidence presented at the hearing. In its reasons, the Tribunal set out a detailed chronology of events with respect to the applicant’s employment history with ASIC: at [25]. It is appropriate to briefly recount some of those key facts. The applicant commenced employment with ASIC on 10 May 2010. Following completion of his probationary period in November 2010, the applicant received a number of “Improvement Required” ratings during performance reviews in 2011 and 2012. This led to the applicant being provided on 7 August 2012 with a notice of unsatisfactory performance and being placed on a Performance Improvement Plan (PIP). The PIP did not formally commence until 11 October 2012, as ASIC was advised by Comcare not to commence the PIP until it had conducted its investigation of a bullying complaint made by the applicant in late August 2012. At various times during his employment, the applicant made a number of complaints, including to senior staff members at ASIC, about concerns relating to alleged bullying and harassment. The earliest of these complaints occurred in March 2012. The chronology shows that these complaints were investigated both internally and by Comcare and no evidence was found of bullying and harassment. Comcare, as a result of its investigation in late September 2012, found that ASIC had a systematic risk management approach to managing bullying complaints. The applicant made further complaints of harassment and threatening behaviour in October and November 2012 (both before and after commencement of the PIP), as well as a purported whistle-blower complaint on 10 March 2013. Following implementation of the PIP, the applicant was advised in November 2012 that his performance was not meeting expectations. From December 2012 onwards, the applicant took extended absences from work, initially using his sick leave, and then unpaid personal leave after his leave balances were exhausted. He attended work for only three days in December 2012 and six days in January 2013. In late February and early March 2013, ASIC sought to arrange an independent medical examination to determine the applicant’s fitness for work. The applicant did not attend these assessments, despite having been directed to do so in relation to the March 2013 assessment. On 15 March 2013, the applicant was notified that his performance had not met expectations. On 8 April 2013, the applicant was advised that ASIC considered his absence from work since 4 March 2013 to be unauthorised. In response, on 18 April 2013, the applicant stated that, amongst other things, he felt unsafe at work. On 29 April 2013, the applicant’s employment was terminated on grounds of non-performance of duties. The applicant subsequently made an unfair dismissal application to the Fair Work Commission (FWC) which was resolved at conciliation. He later resigned from ASIC, effective 29 April 2013.

Ratio Decidendi

Legal Principle Established

Whilst accepting that subjective experiences of feeling unwell do not qualify as an injury, the applicant also submitted in reply that an increase in psychological symptoms in accordance with May, can be described as an aggravation. The increased symptoms included “depression and paranoia” which, the applicant submitted, are well known symptoms of psychiatric illness and contrary to the Tribunal’s finding, constituted a “psychiatric change”. That the Tribunal considered the most “relevant fact” to be that the applicant ceased taking his medication is a distraction from the principles in Chemler and Semlitch in a psychiatric case of taking the victim as one finds them. Consideration The respondent’s submission must be accepted. At the outset it is appropriate to recall three factual matters. First, the chronology of events recited above as well as the factual findings made by the Tribunal are unchallenged. This reflects that the applicant suffered from a longstanding and significant pre-existing psychiatric disease which had been the subject of ongoing intensive medical treatment, including prescription of medication, and that was subject to worsening of symptoms in previous employment. However, at the time that the applicant was employed by ASIC in May 2010, for the first 12 months, his own evidence was that he was happy with his job, and thereafter in August 2011 he voluntarily ceased taking his medication. He presented himself to the emergency department of a hospital with a florid intensification of symptoms accompanied by suicidal ideation in April 2012, about halfway through his employment at ASIC. Second, the Tribunal found that the applicant had ceased taking his medication. The applicant’s evidence-in-chief was that notwithstanding that this was an idea floated by his treatment providers before or at the time of his employment with ASIC, he did not receive advice to go off his medication and he never did. That is, there was a factual dispute as to whether the applicant ceased taking his medication, which was resolved against him. It was open to the Tribunal to so find. Although he was given prescriptions from his treatment providers he did not have them filled. At [92]-[93] the Tribunal concluded: [92]In my view the most relevant issue is the fact that Mr De Tarle’s DHS-Individual Prescribing reveals that the last prescription for paroxetine was supplied 5 August 2011 and that there is no record of any other antidepressant, or any other medication, being supplied until sertraline was supplied on 22 April 2013 in respect of a prescription provided by Dr Unsen, dated 28 February 2013.[93]As the only access, in Australia, to subsidised antidepressant medication is by prescription via the Pharmaceutical Benefits Scheme, the only conclusion I can make is that at some time after August 2011, Mr De Tarle stopped taking his antidepressant medication and did not start with the new medication until on, or after 22 April 2013. The reason for Mr De Tarle’s cessation of his long term antidepressant is unclear.