Di Carlo-Casablanca and Australian Capital Territory (Compensation) - [2019] AATA 4772

Di Carlo-Casablanca and Australian Capital Territory (Compensation) [2019] AATA 4772 (15 November 2019)
Division:GENERAL DIVISION
File Number(s):2016/2562
Re:Misha Di Carlo-Casablanca
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Date:15 November 2019
Place:Canberra

The reviewable decision of 19 September 2015 is affirmed.
........................................................................
Deputy President Gary Humphries AO
Catchwords
COMPENSATION – aggravation of a disease (anorexia nervosa) – whether the applicant’s employment contributed, to a significant degree, to the disease – whether the applicant is excluded from receiving compensation by operation of s 53 of the Act – whether the applicant gave notice of the disease ‘as soon as possible’ after becoming aware of her disease – whether the applicant’s purported notice is ‘notice in writing of the injury’ – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Chugg v Pacific Dunlop Limited (1990) 170 CLR 249
Deveson and Comcare [1999] AATA 80
Leach v Comcare [2019] FCA 1698
Rees and Military Rehabilitation and Compensation Commission [2005] AATA 690
Saunders and Comcare [2015] AATA 111
Spence and Comcare [2017] AATA 2161
Secondary materials
Donald Rumsfeld, Known and Unknown: A Memoir, 2011, Sentinel.
REASONS FOR DECISION
Deputy President Gary Humphries AO
15 November 2019
INTRODUCTION

Ms Misha Di Carlo-Casablanca[1] was a teacher at the Belconnen High School (also referred to as the school or Belconnen High) between 2006 and 2010 when she experienced a relapse of an eating disorder she had suffered from earlier in her life.
[1] When she commenced these proceedings the applicant’s name was Kity Di Carlo. She told the Tribunal she had changed her name by deed poll from Melissa Di Carlo to Kity Di Carlo and then to Misha Di Carlo-Casablanca.
On 26 March 2015, she lodged a workers compensation claim for a deterioration/relapse of anorexia nervosa[2] pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). On 27 May 2015, Comcare issued a determination denying liability in respect of anorexia nervosa, obsessive-compulsive disorder, and eating disorder, unspecified (mixed eating disorder). On 11 August 2015, Ms Di Carlo-Casablanca sought reconsideration of that decision, but on 19 September 2015 Comcare affirmed it.
[2] The use of italicised text in this decision generally indicates direct quotation.
On 16 May 2016, an application for merits review of the latter decision was lodged with the Tribunal.
Comcare was the Respondent in this matter at the time of the hearings in 2017 and 2018; however from 1 March 2019, the Australian Capital Territory became the Respondent due to the ACT Government’s transition to obtain a self-insurance licence under Part VIII of the Act. In these reasons I have therefore used Comcare and the Australian Capital Territory or the Territory or the ACT interchangeably.
These proceedings have had a most unusual history. A hearing was held on 17 August 2017. Part way through the examination of Ms Di Carlo-Casablanca the proceedings were adjourned to allow further written material to be filed responding to issues raised during her examination-in-chief. After a delay of more than a year, the hearing resumed on 20 November 2018, and ran for four days. On the final day, Mr Pattenden, counsel for Ms Di Carlo-Casablanca, provided a closing submission but there was insufficient time to complete the closing submission from the Territory and so the proceedings were adjourned until 13 December 2018.
On the resumption of the hearing on 13 December 2018 counsel for the ACT, Mr Woulfe, concluded his closing submission, and I invited Mr Pattenden to make any final remarks in response. After a short adjournment to allow him to confer with Ms Di Carlo-Casablanca, Mr Pattenden returned to advise me that his instructions to act for her had been withdrawn. The solicitors on the record then advised that their instructions, too, had been withdrawn. Ms Di Carlo-Casablanca came to the bar table and told the Tribunal, by way of explanation, that she was unhappy with the way her legal representatives had been presenting evidence on her behalf; additionally, she felt some evidence should have been presented but was not.
I adjourned the proceedings again, to allow her to obtain alternative legal representation to complete the closing submissions. I indicated that I would at the resumption of proceedings receive fresh submissions but not fresh evidence. I also indicated that, Mr Pattenden having already made closing submissions on her behalf, she would need to provide a clear indication as to which of his submissions she maintained and which she wished to repudiate or substitute. I set a timetable for the filing of those submissions.
In due course Ms Di Carlo-Casablanca advised that she had been unable to obtain alternative legal representation and would now conduct her own case. On 23 January 2019 she filed written submissions. On 1 February 2019, at a directions hearing, I advised her that the submissions would not be accepted, since they were substantially an exercise in laying out fresh evidence. I explained that it would be unfair to file evidence on which the Territory had had no opportunity to cross examine her, and I did not consider her very late decision to remove her legal representatives justified a decision to reopen the proceedings generally.
Ms Di Carlo-Casablanca filed further submissions on 7 March 2019. The Tribunal wrote to the parties on 14 March 2019 indicating that these submissions, too, were unacceptable in that they, too, sought to introduce new evidence. They also failed to indicate, as the Tribunal had requested, which of Mr Pattenden’s closing submissions Ms Di Carlo-Casablanca sustained and which she did not.
A third set of submissions was filed on 20 March 2019. They went some way towards addressing the Tribunal’s concerns, though they were sometimes difficult to follow. As indicated in its letter of 14 March the Tribunal proposes to treat any submission of Mr Pattenden not explicitly repudiated in those submissions as having been adopted by Ms Di Carlo-Casablanca.
THE RELEVANT LEGISLATION
Ms Di Carlo-Casablanca is entitled to compensation if, as an employee of the ACT’s Education Directorate (the directorate or the department), she satisfied the threshold test set out in s 14 of the Act:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
An injury is defined to include a disease or an injury (other than a disease) suffered by an employee (s 5A). A disease, pursuant to s 5B, is defined as follows:
(1) In this Act:
disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
However, the ACT contended that the provisions of the Act do not apply to Ms Di Carlo-Casablanca’s claimed condition by virtue of the operation of s 53, which provides:
Notice of injury or loss of, or damage to, property
(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice--as soon as practicable after the employee's death.
(2)…
(3)Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.
ISSUES BEFORE THE TRIBUNAL
Consistent with the medical evidence, the parties agreed that Ms Di Carlo-Casablanca suffered throughout her life from an eating disorder, namely anorexia nervosa. Thus neither party asserted that her employment caused the eating disorder she experienced between 2006 and 2010, but she submitted that it aggravated her existing condition. The ACT disputed this proposition.
The parties conducted the hearing and made submissions on the premise that an aggravation of anorexia nervosa would constitute a disease pursuant to s 5B. In the Tribunal’s view, that premise is clearly correct. The relevant test of causation, therefore, is whether the aggravation was contributed to, to a significant degree, by [her] employment.
Accordingly, the Tribunal must determine the following questions in these proceedings:
(a)Did Ms Di Carlo-Casablanca suffer an aggravation of a disease, which aggravation was significantly contributed to by her employment with the department?
(b)If so, is her claim for compensation excluded by virtue of s 53?
THE EVIDENCE
Ms Di Carlo-Casablanca was born in June 1964. She is 55 years of age.
She gave evidence to the Tribunal. She told of being hospitalised by anorexia nervosa at the age of 12 or 13, and of being admitted to the (then) Woden Valley Hospital for the same condition when she was in Year 12, or thereabouts. However, she told the Tribunal that, in the 15 or so years before she entered the teaching profession, her anorexia condition had been stable and there had been no hospitalisations. She managed her condition with a regimented diet and regular monitoring of her weight.
She trained as a chef after leaving school but later undertook a bachelor degree in primary education. After graduation she worked in ACT primary schools and at a secondary college in 2004 and 2005 before starting at Belconnen High School in January 2006. That year she taught Year 10 students in a vocational education (VET) class as well as four other classes with students from various years. The VET course was an innovation for ACT schools, and she had to flesh out the designated curriculum, an exercise for which she had not been trained, she said. She felt out of my depth.
Difficulties in the teaching environment developed. She experienced confrontations with some students in classrooms settings; certain boys would refuse to follow her instructions, and would stand over me and say Make me! when told to do certain things. Ms Di Carlo-Casablanca felt scared of these boys. A girl in her sewing class would constantly interrupt her as she spoke to the class. She raised these issues with the head of her faculty, but alleged he didn’t provide much help. She also spoke to other staff but she said that they offered no practical assistance.
Ms Di Carlo-Casablanca told the Tribunal her workload was massive; in 2006 she was working pretty much seven days a week, including frequently in the evenings. She said that she felt she needed to do this because she was a new teacher. She was not experiencing any personal difficulties at home when she commenced at the high school in 2006, and her weight was about 46 kilograms.
She was offered permanency in the department in 2007, but asked the school not to be assigned VET teaching that year, a request with which it complied. She said she didn’t want to be teaching VET. 2007 was also a difficult year for her at the school.
She said that there were four principals at the Belconnen High School in the period 2006-2009, the turnover contributing to the toxic environment there. There was a high staff turnover generally and eventually staff from the Australian National University became informally involved to deal with the school’s problems. As part of this process, staff were asked to lift our game, but Ms Di Carlo-Casablanca observed that little action was taken regarding the school’s difficult kids.
She testified about students who would tell teachers to fuck off. Additionally, she herself had interactions with a kitchen assistant who screamed at her in relation to a food order in approximately the second term of 2009.
Ms Di Carlo-Casablanca noticed early in 2007 that she was beginning to focus on her eating habits. She became more food-obsessed. During this year she began the habit of chewing her food and then spitting it out; this happened up to 3 times a day. She also became more focused on exercise, in the form of walking. Whereas before 2006 she walked approximately once a week for 45-60 minutes, and in 2006 did not walk at all, in 2007 she began to walk two or three times a week for 30-45 minutes at a time. She did this to calm myself down and to burn calories. By the end of 2007 her weight had dropped to about 40 kilograms.
She noticed during early 2007 that her mental functioning had become impaired, in that she found it harder to focus. She had no difficulty sleeping in 2006 but by mid-2007 was noticing incremental bouts of insomnia. Her reduced mental functioning made it harder, she said, to do her job. From about April 2007 she was adopting obsessive-compulsive habits, including obsessively counting calories, weighing food, weighing herself and walking.
She asked to have her workload reduced in mid-2007, and it was reduced by 40 percent. As a result she taught fewer classes. She did this to manage the job better and to help avoid losing any more weight. This reduced workload continued throughout 2008 and 2009, though she was still working an extra 1½ to 2 hours each day. Late in 2009 she was offered a position at Narrabundah College, but did not take up the position. In January 2010 she weighed about 35 kg, and her GP (Dr Neena Sood) certified her unfit for work. At about Easter 2011 she was admitted to the Canberra hospital for some three weeks, where she was fed via a nasogastric tube.
In March 2012 she was admitted to the Northside Clinic Eating Disorders Program in Sydney. Ms Di Carlo-Casablanca’s symptoms included an unhappy digestive system, poor sleep, poor concentration. She also spoke of bloating and intestinal pain.
She remained off work from January 2010 until November 2012. Her weight on returning to work for the department in November 2012 was approximately 43 or 44 kg (her weight before 2007), and has been stable ever since. Although she has returned to the workforce, she has not engaged in classroom teaching since doing so. Since about April 2012 she has not received any medical treatment for her eating disorder, but has managed it herself, she said.
A file note dated 7 August 2013 of one of the Territory’s rehabilitation providers, Jacqui Liggett, was produced. It recorded, referring to Ms Di Carlo-Casablanca, that she reported that she doesn’t believe she should be teaching, as it’s too stressful and aggravates her eating disorder. On 16 December 2013 Ms Di Carlo-Casablanca sent an email to Ms Cathy Crook, a former principal at the school but then apparently working in the rehabilitation area of the department, in which she advised that she was in the process of possibly putting in a ComCare [sic] case in relation to my weight loss while teaching, and asking Ms Crook to document an incident in about September 2009 where her weight loss had been discussed.
What appears to be a file note authored by Ms Crook and dated 18 February 2015 makes reference to a Long standing non compensable claim…due to anorexia, and further notes
Has not lodged, but on several occasions has stated into to lodge, a ComCare claim. [Errors in original.]
On 12 March 2015, Ms Di Carlo-Casablanca completed an incident report noting a psychological injury. She described the injury as follows: the stress of the job resulted in a relapse of an eating disorder. I lost a “significant” amount of weight. In an attachment to the incident report, she noted that the incident happened due to excessive workload, ineffective management of staff and students at Belconnen High School, the challenging students/parents and carers, and the Bullying of me by two students and our faculties school assistant.
On 26 March 2015, she lodged a claim for workers compensation for a psychological injury arising from her employment in the department. She recorded that she first noticed she was ill in or around September 2006, and first sought treatment on or around January 2010.
Ms Di Carlo-Casablanca was asked in the hearing why she hadn’t lodged a claim for workers compensation earlier than March 2015. She explained:
Because I was so underweight, I couldn’t make a decision to save myself…I didn’t have the brain capacity, because it was so malnourished, and I was so terrified of having all that control taken away and being forced to gain weight against my will … So when I finally got back to 43/44/45 kilos… I could physically tell my brain was functioning better and I started to reflect on what had happened.
Later, in relation to the period around 2010, she said:
Obviously, I haven’t joined the dots, obviously I hadn’t, you know, I had an emaciated brain and couldn’t join two sentences together, pretty much, and was not really thinking like that. When I gained 10 kilos, it changed everything.
When asked why she had not mentioned her work problems to any doctors between 2007 2010, she answered:
No, no. Because I was never specifically asked why I had lost the weight, not by Dr McAndrew, not by Dr George, not - you know, and no one else made the link and it wasn’t until my brain was reset and I could think a bit more clearly that I went, you know, I’ve weight before, yes, okay, what was going on at that period of my life to make me get down to 33 kilos? And that’s when I started thinking that could it possibly have been the job?
She said she took advice from Ms Megan Briggs, with whom she was working in Records Management in the department’s central office, in October 2013, which helped her understand the relationship between the stresses she had experienced at Belconnen High School and her weight loss. She told of how she had then sought records from the department’s files to assist her in preparing a claim, but she experienced delays in obtaining the necessary documents. However, later under cross examination she denied that Ms Briggs was solely responsible for making her aware of the link between her employment and her weight loss. She said I had already started thinking about that before speaking to Ms Briggs.
Ms Di Carlo-Casablanca also recounted how, in about late September 2009, Linda Baird, the then principal at Belconnen High, asked her about why she had not done a work fitness assessment given the amount of weight she appeared to have lost. She said this was based on a conversation where Ms Crook had rung Ms Baird:
…after seeing me at a transfer round information session two days earlier and her exact words - Linda’s exact words to me were, “Cathy wants to know why I haven’t done a fit for work assessment on you because since the last time she saw you, you have lost an awful lot of weight.”

In March 2010 such an assessment was carried out and she was certified unfit for work on account of her low Body-Mass Index (BMI). On several occasions over the following three years further assessments were made as Ms Di Carlo-Casablanca attempted to return to work.
She testified that, in the period 2006-2010, there were no other personal issues impacting on her mental well-being other than work-related issues.
Under cross-examination Ms Di Carlo-Casablanca agreed that her weight had fluctuated in the period from age 16 until she started at Belconnen High School in 2006. She agreed that she attended the Royal Canberra Hospital in May 1986, when her weight was 46.3kg, and that her BMI was 16 (a healthy BMI range being 20 to 25). Her weight had dropped as low as 35kg in March 1994. During 1997 her weight fluctuated between 35.5kg and 40kg. She saw her doctor regularly during that time, during which she sometimes complained of diarrhoea, and there was discussion of referral to a psychologist. In 1997 and again between July and September 2000 she attended the eating disorders group at Calvary Hospital. In March 2002 she presented at Calvary Hospital reporting vomiting.
She saw Dr Jeff Cubis, a psychiatrist, in April 1995, after the birth of one of her children. She weighed 36 kg. Dr Cubis recorded that her husband was not very supportive. Ms Di Carlo-Casablanca agreed that she had told Dr Cubis this.
Ms Di Carlo-Casablanca first saw Dr Virginia McAndrew, a psychiatrist, in 2010. Ms Di Carlo-Casablanca told her of bowel dysfunction and constipation, and the abuse of laxatives when she was younger. She told Dr McAndrew that she had been severely underweight for the past three decades, and reported a family history of mental illness, affecting her mother, aunt and grandmother, among others. Ms Di Carlo-Casablanca weighed 36kg on her first consultation with Dr McAndrew.
She saw Dr McAndrew again on 11 May 2010. She recorded a weight of 36.9kg at that time. Ms Di Carlo-Casablanca told the Tribunal that she told Dr McAndrew that she attributed her recent weight loss then partly to the stress of her husband telling her he wanted to leave the marriage. She agreed she did not tell Dr McAndrew about any stresses from employment. She saw Dr McAndrew again on 15 June 2011. She then weighed 37.6 kg. She agreed she gave this history to the doctor:
There are ongoing difficulties and stresses in her marriage as well as other experiences of family conflict. There has been increased demand and stress associated with her current studies at CIT.
Again, Dr McAndrew makes no reference on that occasion to employment-related issues.
She told the Tribunal she had fractured the tip of her coccyx in December 2009 while trying to sit in a racing car. She also agreed that at about that time she was teaching dance at school, something which the injury to her coccyx curtailed.
In January 2010 she saw Dr Sood, her GP. She told her that she had lost lots of weight recently, and wanted time off work. She told her that working at school was stressful, and that she had had problems with her husband not being supportive.
Ms Di Carlo-Casablanca agreed that it had taken her about a year to gather the relevant documentation and evidence she needed before lodging her claim in 2015. She also agreed that she had made a claim against Comcare for a back injury when she was a chef.
Her attention was directed to a performance review she did for the department in 2007. The probationary assessment report dated 13 November 2007 contains a paragraph written by Ms Di Carlo-Casablanca:
I have thoroughly enjoyed my time at Belconnen High. My colleagues in the technology faculty have been incredibly supportive in terms of giving me advice as well as in the sharing of ideas and resources. I now feel more confident in my abilities as a teacher and am enjoying teaching very much. I look forward to what the future holds with much enthusiasm.
When asked at the hearing why she failed to mention in that form that she was struggling to perform because of issues at the school, she replied No, because I wanted permanency. When it was put to her that her statement on the form had not been consistent with her obligations to her employer, she answered:
I didn’t want them to know. I’m not an idiot. I don’t want to lose my job…
… If I was honest I’d lost my job.
Counsel for Comcare put to her that she had lied in the form:
You're saying this is a lie?---Well it has to be. I did it to keep my job…
Indeed and you took licence with the truth to get the financial advantage that would arise in this context?---And who wouldn't.
And is it the case that you are taking licence with the truth in this tribunal hearing for the sake of obtaining workers compensation?---Absolutely not. I am not here for money in any way, shape or form.
She agreed that she had not mentioned to any of the doctors she attended between July 2007 and January 2010 that her work was aggravating her eating disorder. She told the Tribunal that no doctor had spoken to her identifying symptoms of emaciated brain, such as impaired decision-making or memory. She said No one talked to me about…how I was functioning.
A statement dated 31 August 2017 by Ms Di Carlo-Casablanca’s husband, Santino Di Carlo, was tendered. In this he referred to a gradual drop in her weight while she was working at Belconnen High School. He said she would complain about being overworked and being unsupported. He said that she became withdrawn and absent from our family. Eventually he told her that he would end the marriage if she did not seek help for her condition. Mr Di Carlo also gave evidence at the hearing. He said that he observed that she started deteriorating over the first 18 months or so at the high school. She brought work home and spent long hours in the evenings and on weekends dealing with her workload at the school. In addition, she complained about other members of staff and about some of the conflicts that were there in the workplace, as well as the lack of apparent support at the school.
He told the Tribunal that he could see that what was happening at the school was affecting his wife’s weight. This connection was obvious to him between 2008 and 2010, he said. He agreed that he warned her about the dangers of that situation, To the point where I threatened to end our relationship. When asked why she didn’t act on those warnings, he attributed this to an inability to process information when she was in starvation mode. He said that, once she had regained a healthy weight following her time at the Northside Clinic, he further discussed the connection between work stress at the school and her weight loss.
Mr Peter Armstrong had been a teacher at the school between 2007 and 2009. A statement from him dated 7 September 2017 was tendered, in which he said that there was little control exhibited by teachers in managing student behaviour at the school. There were issues with violence at the school. Behavioural issues made its very difficult to teach. He found the school significantly more stressful and challenging than the previous school at which he had taught. Teachers at Belconnen High were not supported by senior staff.
In the statement, he said that Ms Di Carlo-Casablanca looked shaken by the stress of the environment at the school. He said that she and other teachers would complain about their workload and the stress they were feeling.
Mr Armstrong gave evidence at the hearing. He gave evidence of a disruptive environment in the classrooms caused by students. There was an unacceptable amount of interference with other students learning by an unusual number of students who didn’t seem all that interested in the subject, and who would consequently be disruptive. It was just a madhouse, he said. He was head-butted by a student in his first year at the school.
He said he discussed the workplace conditions from time to time with Ms Di Carlo-Casablanca. Her conversation on those occasions revolved around not being happy with the school as a whole. Under cross-examination, Mr Armstrong was asked about whether Ms Di Carlo-Casablanca had raised any issues with him about how stressed she was or how she was being affected psychologically by her work. He said I think she said that she was finding it hard to take, but agreed that he couldn’t provide the exact words because it was so long ago. He agreed that he was not teaching in the same areas as Ms Di Carlo-Casablanca, nor did he observe any incidents between her and a student.
The Territory called a number of present and former teachers at Belconnen High School as witnesses. Mr Andrew Fillery has been a School Leader ‘C’ there since 2007. In a tendered statement dated 18 October 2018, he said that he recalled that Ms Di Carlo-Casablanca had been a home economics teacher at the school, but he was unable to recall why she had some time off. He also said he had no recollection of any conversation with her regarding behavioural issues with her pupils.
Under cross-examination, he was asked whether he recalled a complaint made by a home economics assistant at the school, Ms Sue Gordon, about Ms Di Carlo-Casablanca. He said he had no recollection about the complaint, or the incident to which it gave rise. He also did he recall discussing with a former principal of the school, Ms Judy Maguire, difficulties Ms Di Carlo-Casablanca was having in the classroom. Nor did he recall discussing with Ms Di Carlo-Casablanca stress associated with her teaching at the school.
Mr Fillery was asked about whether, in the period Ms Di Carlo-Casablanca had been teaching there, Belconnen High School had a reputation as a difficult teaching environment. He said that not long previously there had been an amalgamation in 2006 and students from the former Ginninderra High School had been absorbed into the school. He described these new students as difficult kids, who were disruptive of the school environment. They had an impact on the school culture.
A statement of Ms Maguire dated 23 October 2018 was tendered. Ms Maguire said that while she was principal at the school she spoke on several occasions to Ms Di Carlo-Casablanca about various stressors in her life. The latter was very open with her about her eating disorder and about difficulties in her personal life including with her family relationships. In respect of her mental health problems, Ms Maguire had concerns about her ability to manage a classroom of sometimes-difficult students. She also said in the statement that she did not recall Ms Di Carlo-Casablanca telling her that she was stressed by events at work, nor did she form the impression that work was a significant stressor in her life.
Ms Maguire gave live evidence. During cross-examination she agreed that she had approved the ANU carrying out a project at the high school because of, inter alia, disruptive children at the school. The school had a handful of very difficult students. However, she denied that the school then had a reputation as a tough environment for teachers to work in. She told the Tribunal that she recalled Ms Di Carlo-Casablanca telling her of the stress teaching and dealing with student management had on her.
Ms Gordon also gave evidence. A statement from her dated 23 October 2018 was tendered. In that statement she said that she could not remember Ms Di Carlo-Casablanca ever telling her that she was stressed with her work. She also referred to an incident where Ms Di Carlo-Casablanca had made a complaint that she, Ms Gordon, had screamed at her. She denied that she had done so, or that she had spoken rudely to her.
Ms Belinda Bartlett was acting principal of Belconnen High School between 2009 and 2010. In a statement dated 23 October 2018 she said she had very little memory of Ms Di Carlo-Casablanca, and no memory of her raising any employment-related concerns.
Ms Bartlett said that Belconnen was one of four schools which formed part of the ANU project, and that preliminary findings on the project were provided in mid-to-late 2010. She also said she would not dispute that there was a perception that Belconnen High School was a difficult school to work in at that time.
The Tribunal heard argument with respect to the effect of s 53 of the Act on Ms Di Carlo-Casablanca’s claim for compensation. Mr Pattenden asserted that Comcare had been desultory in its efforts to secure an accurate picture of what was occurring at Belconnen High School in the period 2006-2010. He said it was this half-hearted approach, rather than the late giving of notice of the injury, which was contributing to any prejudice to Comcare’s case. Mr Ron Moss, a lawyer acting for Comcare (and later for the ACT), made a statement in which he detailed the efforts made to obtain relevant evidence.
The statement described how Comcare had attempted to contact Ms Linda Baird, one of the principals at the school during this period. In response to an enquiry in August 2017, the department advised that Ms Baird had left the department’s employment. A last known telephone number was supplied but it appeared to have been disconnected. The statement also described attempts made to contact Ms Judy Bruce, another teacher who was alleged to have had difficulties in dealing with students at the school. Advice was provided that she too had left the employment of the department. When her last known telephone number was called on four occasions, there was no answer and a message left on the number was not returned.
Mr Moss was put in the witness box and cross examined. He told the Tribunal he had not googled Ms Bruce’s name. Mr Pattenden then tendered a copy of an Internet search result for one Judy Bruce, describing her as Teacher of Fashion and Textiles at Daramalan College [a Canberra school].
MEDICAL EVIDENCE
In a report dated 2 March 2010, Dr Graham George, consultant psychiatrist, diagnosed Ms Di Carlo-Casablanca with chronic eating disorder in the form of anorexia nervosa and also bulimia nervosa. On Axis III, he noted possible biochemical disturbance or underlying cardiac or bone problems. On Axis IV, Dr George recorded difficult family dynamic relating to her eating disorder – chronic. He stated:
Because of her eating disorder she said that she was less able to cope with teaching high school students. This was especially in the area of technology. She believes at present it would be unfair for her to teach children dance because of her extremely low weight.
Ms Di Carlo-Casablanca was admitted to Canberra Hospital for treatment of anorexia nervosa in April 2011. There is no mention in the hospital’s medical notes of work-related stressors. A dietician at that time recorded that her weight in August 2009 had been 43 kg.
She was voluntarily admitted to the Northside Clinic in Sydney in March 2012. The admission notes dated 15 March 2012 include:
[Ms Di Carlo-Casablanca] is a primary school teacher, worked for many years as a high school teacher, now housewife. Financially dependent on husband.
Difficult situation at home: husband warned her that if she not better after this admission he will arrange a separation.
[Ms Di Carlo-Casablanca’s] daughter is distant and does not speak to [her]. (daughter is morbidly obese).
The notes make no reference to employment-related factors in connection with her admission.
In a report dated 16 October 2012, Ms Kim Lehmann, clinical psychologist, stated that Ms Di Carlo-Casablanca had a complex presentation and would meet the criteria for an eating disorder, anxiety and depression. She noted some childhood trauma and some issues that she had about confidence and self-esteem. Ms Lehmann also noted the family dynamics: Ms Di Carlo-Casablanca had quite a poor relationship with her 20-year-old daughter who was very angry with her. The report makes no reference to work stress.
In a handwritten note dated 13 March 2013, Dr McAndrew noted a message she had received from Ms Di Carlo-Casablanca regarding her intention to lodge a workers compensation claim. Dr McAndrew recorded in her notes my hand written notes do not indicate work stress is a cause of ↑ ED [eating disorder] but that ↓ wt [weight] was associated w/ concerns at work.
Dr Sood’s clinical notes record the following on 19 January 2010:
Known to have eatign disorder for the last 30 yrs, Lost lots of weight recently. Wants time off work, Adv medical management, pt does not want to see eating disorder specialists. Seen DrCubis, Dr Whiting over last few years. Seen few psychologists. Wants time off work. Says working in School is a stressful job. H/O Anorexia for 6 yrs and Bulimia for 24 yrs. Current weight 35 yrs [sic]. Problems with partner, not very supportive. [errors in original]
Dr John Deery, her GP, wrote fitness-for-work certificates in April 2013, February 2014 and June 2014 in which he identified her teaching as a factor or a contributor to the relapse of her eating disorder in 2010. He signed a medical certificate dated 24 November 2014 diagnosing Ms Di Carlo-Casablanca with deterioration in Anorexia Nervosa, which was caused by work related stress.
In a report dated 15 April 2015, Dr McAndrew diagnosed Ms Di Carlo-Casablanca with anorexia nervosa. He reported that she described a number of stressors; the stress with teaching the previous year, significant marital stress and concerns about the mental health of her two children, aged 18 and 14 years old. Dr McAndrew noted:
I have no record or recollection of specific incidents in Mrs Di Carlo’s employment that caused or aggravated her condition. I recall that she told me her teaching job was stressful. She was also experiencing a lot of marital stress which was contributed to by her abnormal eating patterns and low weight. She was stressed about her children’s mental health, and about conflict within the family.
Ms Di Carlo-Casablanca was examined by Dr Antonella Ventura, Consultant Forensic Psychiatrist, at Comcare’s request on 1 May 2015. In a report dated 11 May 2015 Dr Ventura opines:
In my opinion, Ms Di Carlo’s current medical condition is a continued experience of Ms Di Carlo’s symptoms which would have been present in any event under any stressor and exacerbated by any stressor...
The genesis of the eating disorder is thought to be both genetic and familial. Furthermore, she has had a number of stressors as an adult which have led to mood disorder in the form of postnatal depression after her second child. Shortly prior to commencing employment in the high school in 2006, she had experienced other significant stressors… She told me that she then attempted postgraduate qualifications in dancing and was disappointed when she was not successful. It is reasonable to assume that the stress of full-time work in a high school may have further contributed to the symptoms experienced by Ms Di Carlo. However, in my opinion, employment did not significantly contribute to her psychiatric conditions.
Ms Di Carlo-Casablanca saw Dr Robert Gertler, Consultant Psychiatrist. He produced a report dated 3 November 2016. When asked as to when the psychological symptoms first reached the point that she could be described as suffering a condition outside the boundaries of normal mental functioning and behaviour, Dr Gertler responded:
In my opinion, the symptoms of the anorexia nervosa first developed when Ms Di Carlo was 13 years of age. From her early 20s however, they appear to have become relatively stable, such that her weight remained steady, she was able to marry, have children and lead what appears to have been a normal personal and social life. She appears also to have been able to cope with the demands of her work.
Ms Di Carlo’s anorexia nervosa symptoms became worse in 2007, manifesting as a progressive weight loss.
As to what factors he considered contributed, to a significant degree, to the onset or aggravation of her condition, Dr Gertler opined:
Ms Di Carlo’s experiences at Belconnen High School, which constituted alleged harassment and bullying with lack of support from staff and some students over a period of two years, in my opinion, led to an aggravation of Ms Di Carlo’s chronic anorexia nervosa.

He added:
Ms Di Carlo’s employment as a classroom teacher did not contribute to the onset of the anorexia nervosa, but contributed to the aggravation of that condition.
He considered it unlikely that she would have experienced an aggravation of this condition had she not been subjected to the alleged harassment and bullying at Belconnen High School.
Under cross-examination, Ms Di Carlo-Casablanca admitted that she had not provided Dr Gertler with much of her medical history of anorexia, including attending the eating disorders group at Calvary Hospital in 1997 or 2000 and consulting various doctors prior to 2006 on the question of her eating disorder.
Dr Ventura wrote a supplementary report dated 13 December 2016. She expressed this opinion:
Having considered the additional material specifically, the contemporaneous clinical notes from the period 2006 to 2010, in my opinion Ms Di Carlo’s conditions or the aggravation of such condition was not contributed to a significant degree by her employment. Notes from her treating psychiatrist and general practitioner as well as clinical notes from hospital admissions do not mention workplace stress as a significant causative factor in the relapse of her eating disorder…
According to the notes available to me and particularly Dr McAndrew, her treating psychiatrist, it appears as if Ms Di Carlo had a number of significant family stressors, including marital difficulties and significant conflict with her children, both of whom were diagnosed with a psychological disorder. Dr McAndrew writes that her eating disorder was likely to have been precipitated by a change in her bowel habits some months prior to her weight loss.
Drs Ventura and Gertler gave concurrent evidence to the Tribunal by telephone. Both agreed that Ms Di Carlo-Casablanca’s condition was best diagnosed as a chronic eating disorder, namely anorexia nervosa, and that that condition had been aggravated in the period 2006 to 2010. Dr Gertler considered that her employment with the directorate had contributed to a significant degree to that aggravation. When asked if stress may have more impact on a person with anorexia nervosa, he responded:
Yes, because she is more vulnerable. Because people with anorexia nervosa, if they lose weight, it can affect their mood, it can affect their ability to tolerate certain situations, and that in itself, as a secondary effect, if you like, can further aggravate the experience of being stressed and lead to a type of vicious cycle…
He said that his experience of working with sufferers of anorexia nervosa suggested that the condition left them vulnerable such that their lives tended to be stressful to varying degrees, both on a personal and on a social level as well as occupation.
Dr Ventura considered that, while, hypothetically, work-based stress can contribute to a relapse of an eating disorder, this was not the case for Ms Di Carlo-Casablanca. She based this opinion on significant inconsistencies in the way she delivered her answers, as well as review of people who examined her at the time of the aggravation. She also suggested that a resurgence of the eating disorder may have contributed to a lower tolerance to stress, rather than the other way around.
As examples of inconsistencies in Ms Di Carlo-Casablanca’s account of her illness, Dr Ventura referred to her failure to tell the Northside Clinic or Dr Gertler of significant weight losses in the period before 2006. She also placed particular emphasis on the report and clinical notes of Dr McAndrew, the eating disorders specialist. In relation to the stressors which Dr McAndrew recorded had precipitated Ms Di Carlo-Casablanca’s condition as at 2015, Dr Ventura made this comment:
Well, it is clear by reading the summaries in her notes that she did that. Had she come to the conclusion or elicited that work was a significant factor, I would have expected that she would have said so and documented it. I am making an assumption that as she documented the other factors, had she found that this was relevant she would have documented the work factor as well and I’ve got no – I can’t possibly understand why if it had been present, she wouldn’t have mentioned it.
Under cross-examination, Dr Gertler agreed that Ms Di Carlo-Casablanca had not provided him with a history of her fluctuations in weight loss in the period before 2006. He conceded that his opinion on the link between employment and an aggravation might be different depending on the nature of that history. He also told the Tribunal that he had received documents setting out that history shortly before the hearing but had not had time to consider them.
Both Dr Ventura and Dr Gertler noted that people suffering from anorexia may experience a decline in cognitive capacity. However, such people may experience very low weights and still have normal cognitive function. Both doctors said that they had not seen any evidence on review of the clinical files to suggest that Ms Di Carlo-Casablanca had experienced a decline in cognitive thought such as to prevent her giving a full history to someone.
The doctors were asked how likely it would have been that cognitive impairment due to weight loss would have prevented Ms Di Carlo-Casablanca from drawing a connection between stress at work and the flaring up of her eating disorder. Both doctors thought this unlikely. Dr Ventura said:
I don’t think that the emaciated brain theory would have prevented her from communicating that specific issue while she was able to recall all sorts of other issues.
Dr Gertler agreed, saying:
I think she was probably just utilising denial as a way of …encouraging herself to continue working, she wanted to continue working.
Dr Gertler added (and Dr Ventura agreed) that an anorexia sufferer will tend to be in denial about the significance of weight loss.
CONTENTIONS
Ms Di Carlo-Casablanca (submissions by Mr Pattenden)
Mr Pattenden contended that Ms Di Carlo-Casablanca’s condition of anorexia nervosa was stable prior to 2006 or 2007. At about that time she suffered an aggravation of that condition, which was significantly contributed to by her employment with the department. But for that employment, she would not have suffered an aggravation of her condition. A date of injury of June 2007 was asserted. The Territory is liable for her injury pursuant to section 14 of the Act, it was contended.
He relied on her evidence that she found the work at Belconnen High School stressful and overwhelming, that the teaching environment there was extremely difficult and that there was little support from other teachers. He pointed to the corroborating evidence of her husband, who testified that she was stressed in that environment and not coping. Ms Maguire, the then principal, had confirmed that Ms Di Carlo-Casablanca told her of her difficulties in teaching at the school, and formed an adverse opinion about her ability to manage a class of difficult students. The environment in the school was demonstrated in the evidence of Mr Armstrong, who pointed to violence at the school and to the problems of blending students from different socio-economic groups following the closure of Ginninderra High School, and was confirmed by Mr Fillery who suggested that the problems at the school were greater than elsewhere. Mr Pattenden highlighted the involvement of the ANU in a project involving the school as evidence that it had problems of an exceptional order.
With respect to the medical evidence, he pointed to references in reports of Dr Deery, Dr Sood and Dr McAndrew to her experience of stress while teaching at the school. This is echoed in her decision to reduce her teaching workload from 100% to 60% in the middle of 2007. The weight fluctuations she experienced in the period 2006-2010 were more serious than ones prior to 2006, in that the earlier fluctuations occurred in the context of her giving birth to two children and undertaking tertiary study. The fact that this was possible indicates that the problems occurring while at the school were more serious and not part of the normal course of an eating disorder.
Addressing the issue of s 53, Mr Pattenden maintained that no prejudice had been identified on the part of the Territory by virtue of the delay in advising of the injury. It was contended that medical reports and clinical notes were still available, and Dr Ventura had no difficulty in being able to provide an opinion about likely causes of the flare-up in the anorexia condition. To the extent that it had not been possible to obtain evidence from Ms Bruce or Ms Baird, it was submitted that any evidence they might have given (that they had no recollection on their part of Ms Di Carlo-Casablanca making any complaints) would have been offset by the other evidence before the Tribunal that she was in fact adversely affected. Their absence from the hearing was therefore of little or no consequence and poses no real prejudice. In any case, it was asserted that Comcare’s attempts to locate key witnesses had been less than diligent, and it should not be rewarded for its failure to make serious enquiries about the location of witnesses. Comcare had not undertaken interviews of possible friends and associates of the missing witnesses to locate them. The production of an Internet search showing that a Judy Bruce was still teaching in the ACT was said to demonstrate Comcare’s lackadaisical approach.
It was contended that the period between first becoming aware of the injury and advising Comcare of this fact was effectively shorter than the interval asserted by Comcare. Mr Pattenden submitted, in effect, that the department was on constructive notice of her injury from a date earlier than 2015. Four alternative dates of constructive notification were asserted. The first was September 2009, based on her evidence that Ms Crook observed her at the time of the transfer round to have been very emaciated, and encouraged the then principal to arrange a fitness for duty assessment. As such, the employing agency…is aware of the circumstances and is on notice of an injury. The second was 2 March 2010, being the date of a report to the department by psychiatrist Dr George in which he records: Because of her eating disorder she said that she was less able to cope with teaching high school students. Alternatively, as the third possible option, the department must have been provided with notice sometime before 7 August 2013 when Ms Liggett, the Territory’s rehabilitation provider, wrote a report recording Ms Di Carlo-Casablanca’s belief that teaching aggravates her eating disorder. The fourth asserted date was 16 December 2013, when Ms Di Carlo-Casablanca sent Ms Crook an email advising that she was in the process of possibly putting in a workers compensation claim. Mr Pattenden submitted that a worker complies with s 53 if she gives her employer a report of her injury.
It was further contended that Ms Di Carlo-Casablanca had impaired cognitive ability – what she referred to in her evidence as emaciated brain – during the period 2006-2010 due to her dramatically reduced weight. This impairment inhibited her ability, it was said, to recognise that her employment had caused an injury (aggravation of her eating disorder), and thus falls within an exception to the requirement to give early notice in s 53(3)(c), i.e. failure to give notice resulted from… ignorance, from a mistake or from any other reasonable cause…
Ms Di Carlo-Casablanca (later personal submissions)
As indicated above, subsequent to the termination of her legal advisers’ instructions Ms Di Carlo-Casablanca prepared and lodged written submissions on her own behalf. She explained therein that she adopted Mr Pattenden’s submissions except where explicitly indicated to the contrary.
Some comments on her 25-page submission are warranted. As already observed, the Tribunal rejected two earlier versions of the submission on the basis that they were substantially exercises in the tendering of fresh evidence. To some extent the third and final submission suffered from the same problem; to the extent that it sought to do this, it has been ignored. The Tribunal is not inclined to admit new evidence at this point in the proceedings, bearing in mind the following matters:
(a)a period of 16 months had already elapsed between the first and last days of the hearing, including an adjournment of 14 months to allow for additional evidence to be procured;
(b)the hearing itself ran over a total of six days;
(c)Ms Di Carlo-Casablanca was present for every one of those days;
(d)her decision to terminate her legal advisers’ instructions was made at almost the last possible moment in those proceedings, well after both parties had purported to complete the tender of all their evidence;
(e)her explanation for this late decision – that she was dissatisfied with her legal team’s performance and its failure to lead relevant evidence but was unaware she had the power to instruct her legal advisers as to what matters they were to put before the Tribunal – is implausible and in any case unsatisfactory;
(f)even if she had been unaware of her power to instruct her advisers, there was no explanation as to why she waited until the death knell of the proceedings before dismissing those advisers;
(g)the acceptance of late evidence in these circumstances would either be highly prejudicial to the ACT or would require the reopening of the proceedings, for which there was no good case given the commitment of time and resources already made in this matter.
To the extent that her final submission does not itself present new evidence, its contents fall into four categories:
(a)disagreement with the form, the sequencing or the forcefulness – but not the substance – of the submissions made by Mr Pattenden;
(b)criticism of her legal advisers for failure to obtain evidence, e.g. the ANU report, or to cross examine certain witnesses about certain matters;
(c)submissions which are either plainly irrelevant or insufficiently comprehensible to assist the Tribunal; and
(d)relevant matters not touched upon in Mr Pattenden’s submissions.
Three particular submissions fall into the last of those categories:
(a)the Tribunal should give particular weight to the evidence of Ms Bartlett, who said that Belconnen High School was one of four schools which formed part of the ANU project, and that there was a perception that it was a difficult school to work in at that time;
(b)Ms Di Carlo-Casablanca was bullied by Ms Gordon, a factor contributing to her stress and weight loss;
(c)Belconnen High School had a duty of care towards Ms Di Carlo-Casablanca which it failed to discharge:
Supervisory and managerial staff at that school should have made enquiries/ conducted an investigation involving me – to ascertain why I was losing the weight – irrespective of whether it was related to work or not. To simply stand by and let it happen with no intervention put my life in serious danger…
The Territory
The ACT contended that Ms Di Carlo-Casablanca failed to give notice of her alleged injury to Comcare as soon as practicable after she became aware of the onset of that condition. It said Comcare was prejudiced by the passage of time in investigating the circumstances in which she claims her condition arose. It noted that Ms Di Carlo-Casablanca was not ignorant of the compensation scheme and its processes, as she had previously made a claim for workers compensation. Her claim was excluded by virtue of s 53.
The ACT cited McHugh J’s judgement in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551:
Sometimes the deterioration in quality [of the available evidence after a period of delay] is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anyone else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo “what has been forgotten can rarely be shown”. [Citation omitted]
It also relied on the presumption of finality, drawing attention to a delay of between four and six years between Ms Di Carlo-Casablanca becoming aware of her injury and lodging a claim. The opportunity to interview witnesses contemporaneously had been lost, and those witnesses who were called to give evidence were frequently unable to recall relevant details of what occurred at the school. It was also contended that Comcare had been prejudiced by the failure to provide early notice of the injury in that the opportunity for medical treatment and rehabilitation – at a time when this may have made a difference to the course of the injury – had been missed.
The Territory denied that advising staff in the employing department of a work-related illness satisfies the requirement of s 53 that Comcare be given notice of the injury.
It further denied that Ms Di Carlo-Casablanca suffered from a work-related aggravation of anorexia nervosa, submitting that any re-emergence in the period 2006-2010 of her long-standing condition was not contributed to, to a significant degree by her employment at Belconnen High School. It did not deny that the condition increased in severity during this period; what it did deny was that this worsening was significantly contributed to that employment. None of the contemporaneous medical evidence identified her employment as a significant causative factor to the aggravation of that condition.
Mr Woulfe, for the Territory, highlighted Ms Di Carlo-Casablanca’s long history of struggle with low weight and medical intervention to deal with that problem in the period before 2006. He also related her medical records in the period 2006-2010, pointing out that there were very few occasions in those records where her employment was mentioned as implicated in the weight loss she was then experiencing. If anything, the evidence indicated that her employment was affected by her eating disorder, rather than her eating disorder being affected by her employment. Alternatively, he highlighted references to other personal issues in those records, including a family history of mental illness, a troubled relationship with her husband and conflict with her daughter.
Mr Woulfe described Ms Di Carlo-Casablanca’s association between the re-emergence of her eating disorder and her employment as the product of a faded memory of that period. He suggested that the conversation with Ms Briggs in the department’s records office in October 2013 may have introduced or encouraged false memories of what had happened to her at the school. He said that contemporaneous records should generally be preferred over a later reinterpretation of what occurred.
CONSIDERATION
Section 53 provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given…. Section 4 defines injury to mean an injury determined according to the provisions of s 5A. From this structure of the Act, it may be inferred that s 53 is to operate only in the circumstances where an injury has been found to exist pursuant to s 5A. It is an exclusionary provision; it operates to obviate, for public policy reasons, an entitlement otherwise conferred by the legislation.
Accordingly the Tribunal performs its statutory task by putting into the background the provisions of s 53 and proceeding ab initio to determine whether an injury exists under s 5A.
Although the condition which was said to be aggravated by Ms Di Carlo-Casablanca’s employment has received different diagnostic labels over time, both doctors giving live evidence to the Tribunal concurred that chronic eating disorder (anorexia nervosa) was the appropriate diagnosis of her condition. The Tribunal so finds.
Did Ms Di Carlo-Casablanca suffer an aggravation of her eating disorder, being an aggravation which was significantly contributed to by her employment?

Necessarily, this question must be answered based on the state of the evidence presented at the hearing. It must be observed at the outset that that evidence has been significantly affected by the effluxion of approximately 10 years since Ms Di Carlo-Casablanca’s eating disorder flared up while working at Belconnen High School. More will be said about the state of the evidence in the next segment of this decision dealing with s 53. At this point, the Tribunal merely notes that it is not infrequently called upon to make decisions about the origin of physical or psychological conditions arising in the employment context some years or even decades in the past, in circumstances where the evidence on that subject is patchy and/or contradictory.
Ms Di Carlo-Casablanca submitted that turbulent working conditions at the school induced stress which in turn aggravated her eating disorder. The evidence of what was occurring at the school in the period 2006-2010, when the injury was said to have arisen, was indeed contradictory. However, the Tribunal is prepared to accept, on the balance of probabilities, that there was a difficult teaching environment there. That was the clear evidence of Ms Di Carlo-Casablanca herself and of Mr Armstrong, who taught there contemporaneously. The Tribunal accepts that the sorts of incidents related by these witnesses – students defying and swearing at teachers, a teacher being head-butted, frequent classroom disruptions, assaults – were not fictions. To the extent that they had clear recollections, some of the witnesses for the Territory lent some credence to these claims, including Mr Fillery and Ms Bartlett.
The Tribunal is further prepared to accept that, on the balance of probabilities, this difficult environment made a significant contribution to a condition to which Ms Di Carlo-Casablanca had a particular susceptibility, namely her eating disorder. It accepts the medical evidence that the condition has fluctuated in intensity throughout her life, but also considers that the stressors which she described at the school are more likely than not to have brought about a worsening of that condition rising to the level of an aggravation which is compensable pursuant to s 5B. Dr Ventura and Dr Gertler took opposite positions on the likelihood of this having occurred, but it ought also to be observed that, with the separation of so many years between the condition arising and their examination of the claimant, pinpointing exactly what elements in her life made a significant contribution to the condition’s worsening at that time is an inexact science.
The Territory placed some emphasis on the absence of any contemporaneous medical records drawing an explicit link between stress at work and weight loss. Dr Ventura also noted that those records did not mention workplace stress as a significant causative factor in the relapse of her eating disorder. While it is true that no examining practitioner made that connection in the period 2006-2010, it is not true that Ms Di Carlo-Casablanca failed to relate work-related stress to clinicians in that period. Dr McAndrew, a psychiatrist specialising in eating disorders, notes somewhat cryptically in March 2013:
…my hand written notes do not indicate work stress is a cause of ↑ ED [eating disorder] but that ↓ wt [weight] was associated w/ concerns at work.
In April 2015 she notes in a report:
I recall that she told me her teaching job was stressful.
Ms Di Carlo-Casablanca’s GP, Dr Sood, makes a clinical note in January 2010:
Says working in School is a stressful job.
Another GP, Dr Deery, wrote fitness-for-work certificates in 2013 and 2014 in which he identifying teaching as a factor or a contributor to the relapse of her eating disorder in 2010.
Of course, there are other references in the medical records to marital and other stressors in her life at that time, and there is every reason to believe that these played a significant, even a dominant, role in a resurgence of her eating disorder. But the relevant test in s 5B is whether employment made a significant contribution to a disease; as has been noted many times elsewhere, this does not require that the employment contribution be the sole or the dominant cause of a disease or an aggravation of a disease.
While noting the difficulty of reaching any conclusion with certainty in these circumstances, the Tribunal finds that Ms Di Carlo-Casablanca suffered an aggravation of a disease (anorexia nervosa), which was significantly contributed to by her employment with the department.
Is the injury excluded by virtue of s 53?
For the purposes of determining this question, it is first appropriate to determine a date of injury. Ms Di Carlo-Casablanca gave evidence that she noticed during early 2007 that her mental functioning had become impaired, in that she found it harder to focus. By mid-2007 she was noticing incremental bouts of insomnia. Her reduced mental functioning made it harder, she said, to do her job. From about April 2007 she was adopting obsessive-compulsive habits, including obsessively counting calories, weighing food, weighing herself and walking. She asked to have her workload at the school reduced in mid-2007.
On 26 March 2015, she lodged a claim for workers compensation for a psychological injury arising from her employment. In it she stated that she first noticed she was ill in approximately September 2006, and first sought treatment in January 2010.
In her report of 11 May 2015, Dr Ventura considered that Ms Di Carlo-Casablanca suffered from her condition at the time of the claimed injury of 1 September 2006. It is not clear, however, whether this is a reference to the aggravation or the underlying condition. In his report, Dr Gertler referred to the condition arising in 2007. Given her own account of worsening symptoms during 2007, and her request to reduce her work hours in the middle of that year,[3] the Tribunal considers that mid-2007 is the most probable approximate date of injury.
[3] Section 7(4) provides that For the purposes of this Act, an employee shall be taken to have sustained an injury…on the day when (a) the employee first sought medical treatment for the disease…or (b) the disease…first resulted in the incapacity for work… whichever happens first.
Section 53(1) requires that notice in writing of an injury must be given as soon as practicable after the employee becomes aware of the injury. The seminal issue in these proceedings is when Ms Di Carlo-Casablanca became aware of her injury. For the reasons which follow, the Tribunal finds that she became aware of her injury at about the time it arose, namely in 2007, and certainly no later than 2010.
It is clear on the evidence that Ms Di Carlo-Casablanca was aware she was suffering a relapse in her eating disorder in 2007. What she claimed not to have been aware of was that this relapse was caused by her work at the school. Section 53(1) must be understood to impose the duty to give notice of an injury as soon as the employee becomes aware that an injury suffered is work-related; see, for example, Deveson and Comcare [1999] AATA 80 at [13]; Rees and Military Rehabilitation and Compensation Commission [2005] AATA 690.
Ms Di Carlo-Casablanca has suffered from anorexia for more than 40 years. The condition has fluctuated in intensity in that time, but appears since her teenage years never to have disappeared from her life completely. She appeared to the Tribunal to have been very well-informed about the nature and scope of the condition; in particular, she was well aware of the relationship between stress and weight loss.
Her evidence about her job causing her stress was direct and emphatic. She felt out of my depth and intimidated at the school. She did not know how to manage the children she was required to teach, and she felt physically scared of some of them. Some students would talk over her or defy her authority; some would stand over me and physically intimidate me. She was sworn at by one student, who arranged for her friends to stalk Ms Di Carlo-Casablanca. She felt unsupported by school leaders and other staff, though she told other teachers about how difficult she was finding the work. To compensate, she was working seven days a week.
At about this time, she began to find it harder to focus. She began experiencing bouts of insomnia. Her reduced mental functioning made it harder, she said, to do her job. She took up some of the obsessive-compulsive habits, including obsessively counting calories, weighing food, weighing herself and walking, which she had encountered in earlier manifestations of her anorexia. Most significantly, she began to lose weight. To deal with this, she sought to have her workload reduced.
Despite this confluence of stressful events and deteriorating mental health, Ms Di Carlo-Casablanca told the Tribunal that she drew no connection between the two issues, not at that time (2007) nor at any time in the subsequent five or six years. The Tribunal finds this evidence very difficult to accept. She was very familiar with the way her eating disorder could be affected by stress. She claimed she experienced considerable stress in the school context. Her husband gave evidence that she told him about conflicts…in the workplace and the lack of apparent support from the school. He said that he noticed the stress, and recognised its relationship to her work, in the period 2008-2010, and pointed this out to her. He said he even threatened to end the marriage unless she did something about this situation.
With the benefit of hindsight (and, in Mr Di Carlo’s case, even without it) the nexus between workplace stress and the rising symptoms of her eating disorder seems blindingly obvious and irresistible; yet Ms Di Carlo-Casablanca claims not to have seen it. This is despite giving evidence at the hearing which is couched in language strongly suggestive of her being conscious of a nexus. For example, when asked why she had her workload reduced in the middle of 2007, she responded:
I was aware that I was losing weight and I didn’t want to lose any more so I thought if I went part-time that would take some of the pressure of work off but also allow me to hopefully help myself.
In the Tribunal’s assessment, the latter-day assertion that she failed to appreciate that work was making her sick lacks credibility. It takes a leap of faith to accept that a person can hold their finger over a candle flame and claim to not understand why the finger was hurting, yet this is, analogously, what Ms Di Carlo-Casablanca is asking the Tribunal to do here.
Was there impaired cognitive capacity?
Ms Di Carlo-Casablanca’s response to the assertion that she must have recognised that employment was making her sick was that she suffered from impaired cognitive ability – or emaciated brain, as she put it – between 2006 and 2010 due to her dramatically reduced weight. For much of 2010 she weighed as little as 35 kg. This impairment inhibited her ability, she said, to recognise that her employment was aggravating her eating disorder. This assertion goes, potentially, to two considerations under s 53: determining the point at which she became aware of the role played by employment in her injury (subsection (1)(a)) and whether a failure to give notice resulted from… ignorance, from a mistake or from any other reasonable cause…(subsection (3)(c)).
Drs Ventura and Gertler gave evidence that people suffering from anorexia may experience a decline in cognitive capacity coinciding with low body weight. Dr Ventura said that if the weight loss was associated with malnutrition, the patient might develop a confused state and be unable to function.
Noting this evidence, there are nonetheless several difficulties which Ms Di Carlo-Casablanca must overcome in sustaining the claim that her judgement was inhibited by emaciated brain. The first is the evidence of both Dr Ventura and Dr Gertler that impaired mental function is not invariably a feature of low body weight. Dr Gertler, for example, said he had seen adults weighing as little as 28 or 29 kg with perfectly normal cognitive function. Secondly, both doctors were asked if they had seen any evidence on her clinical files to suggest that Ms Di Carlo-Casablanca had in fact suffered a decline in cognitive ability. Neither had. Both were asked how likely it would have been that cognitive impairment due to weight loss would have prevented her from drawing a connection between stress at work and the flaring up of her eating disorder. Both doctors thought this unlikely.
A further difficulty relates to evidence that she gave relating to her probationary assessment report at the school in November 2007, where she wrote:
I have thoroughly enjoyed my time at Belconnen High. My colleagues in the technology faculty have been incredibly supportive in terms of giving me advice as well as in the sharing of ideas and resources. I now feel more confident in my abilities as a teacher and am enjoying teaching very much. I look forward to what the future holds with much enthusiasm.
This description provided to the department is, of course, precisely the opposite of what she told the Tribunal she was experiencing in 2007. When asked why she had lied (as she conceded she did) in the report she said, in reference to her bid for permanency at the department:
I didn’t want them to know. I’m not an idiot. I don’t want to lose my job…
… If I was honest I’d lost my job.
The Tribunal observes that in taking this approach Ms Di Carlo-Casablanca was making a shrewd calculation, notwithstanding her supposedly-emaciated brain, about what her own best interests required in communications with her employer. With respect, this does not suggest a person suffering from impaired cognitive ability.
Even if it were to be accepted that she was suffering from impaired cognition in 2007, by August 2009 her weight had returned to 43 kg. As she said in her evidence, for her this was a relatively normal weight:
So when I finally got back to 43/44/45 kilos… I could physically tell my brain was functioning better and I started to reflect on what had happened.
Despite this return to “normal” brain functioning (albeit temporarily), and her husband’s strongly held view at about that time that her work was damaging her health, Ms Di Carlo-Casablanca was still years away from telling Comcare of her injury. Her evidence was that her weight returned to normal after she had been admitted to the Northside Clinic in March 2012, yet even then it was a further three years before a notice of injury was lodged.
All of this suggests that impaired cognitive ability was not afflicting Ms Di Carlo-Casablanca in this period, or at least not afflicting her on a sustained basis. In Leach v Comcare [2019] FCA 1698 Reeves J said at [28]:
…s 53(3)(c) of the SRC Act provides an exception to the requirement for a person making a claim to give notice of an injury “as soon as practicable” after that person becomes aware of the injury concerned. Hence, the person relying on that exception bears the onus of proving the facts necessary to establish that the exception exists (see Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 at 258). In this matter, that meant Mr Leach bore the onus of establishing that his failure to provide the notice of his injury “as soon as practicable” after becoming aware of it resulted from ignorance.
Here, Ms Di Carlo-Casablanca has fallen far short of discharging that onus. Rather, the emaciated brain hypothesis bears all the hallmarks of an ex post facto justification for her failure to meet her obligation to advise her employer of an injury caused by employment. On the balance of probabilities, the Tribunal finds that Ms Di Carlo-Casablanca was aware in the period 2007-2010 that she had sustained a work-related injury, pursuant to s 53(1)(a). To the extent that she may have intermittently suffered from some impaired cognitive ability during this period, this could not be said to have constituted ignorance…mistake or…other reasonable cause within the meaning of s 53(3)(c) from which a failure to give notice of her injury resulted.
Prejudice to Comcare
Section 53(3)(c) provides a number of circumstances where a worker who has failed to give notice of an injury as soon as practicable may nonetheless escape the exclusionary operation of the section. If any one of these grounds in paragraph (c) is made out, the section will not operate to exclude the injury from compensability.
The Tribunal has already dealt with the claim that impaired cognitive capacity constituted a reasonable cause for failing to give the notice sooner. The other claim advanced by Ms Di Carlo-Casablanca in respect of that paragraph, however, was that Comcare had not been prejudiced by the late provision of notice.
In addressing the question of prejudice, it is necessary to first establish what the actual interval was between Ms Di Carlo-Casablanca becoming aware of (the work-related nature of) her injury and Comcare receiving notice of that injury.
The Tribunal has already found that she was aware that work had injured her in mid-2007. She lodged a claim for workers compensation in March 2015, which she conceded was the first written formal notice to Comcare of the injury, but asserted at the hearing that notice of the injury had in fact been provided before that point. It was suggested that the department (and hence Comcare as its insuring agency) was, as it were, on constructive notice of her injury from September 2009, when Ms Crook observed her to have been very emaciated, and encouraged the principal to arrange a fitness for duty assessment. Alternatively, the department/Comcare knew of her injury when Dr George wrote to the department in March 2010, noting Because of her eating disorder she said that she was less able to cope with teaching high school students.
The submission regarding these purported-notices must be rejected. Putting aside the question of whether these “notices” were notices to the department rather than to Comcare, the Tribunal accepts the Territory’s submission that what, if anything, was being drawn to the attention of the relevant authority was that Ms Di Carlo-Casablanca’s eating disorder was affecting her performance at work, not that work was causing her eating disorder to worsen. The provision of such information cannot be regarded as notice of an injury under the section, a conclusion which is consistent with the Tribunal’s approach in Spence and Comcare [2017] AATA 2161 at [36]-[37]. Further alternative submissions were that the department/Comcare knew of a work-related injury when Ms Liggett, the Territory’s rehabilitation provider, wrote a report in August 2013 noting that teaching aggravates her eating disorder, or – at the latest – when Ms Di Carlo-Casablanca emailed Ms Crook in December 2013 advising that she was in the process of possibly putting in a workers compensation claim.
In the Tribunal’s opinion, neither of these events constitutes notice in writing of the injury pursuant to s 53(1). It is not clear on what basis Ms Liggett wrote what she did in August 2013; nor is there any evidence about what Ms Crook did with Ms Di Carlo-Casablanca’s email of December that year. However, whatever conclusions either woman had reached about the relationship between Ms Di Carlo-Casablanca’s work and an injury, it was neither woman’s responsibility to draw any such conclusions to Comcare’s attention. Indeed, it is doubtful that either woman would have had the right to do so. In an age when privacy considerations are front-and-centre of many agencies’ operations, it would have been surprising if either woman believed it appropriate to pass on to Comcare what must be regarded as speculative intelligence about possible injury to a worker (particularly in the case of Ms Crook who would have understood that Ms Di Carlo-Casablanca intended to do that herself).
That assumption must be reinforced by the knowledge that Comcare is not an agency of the ACT government. In her later submissions Ms Di Carlo-Casablanca argued that the school had a duty of care toward her which it failed to discharge by not arranging for treatment of her aggravated anorexia. Whether the school (or the department) had such a duty is not a matter within the present purview of the Tribunal; what is within that purview is Comcare’s duty toward her, a duty which it clearly could not discharge if it was unaware that she had been injured by employment. All the evidence suggests that it was actually unaware of any possible injury until March 2015.

It does not appear as if the doctrine of constructive notice has any role to play in the operation of s 53, in any case. The provision is a formal mechanism designed, it is apparent, around public policy considerations centred on the need to encourage workers to give early notice of injury.[4] The requirement that the notice be provided in writing and that it be given to the relevant authority must be seen in this context as deliberate and formal requirements, the sine qua non for entitlement under the legislative scheme. As the Federal Court noted in Leach, those requirements are sufficiently clear that an injured worker bears the onus of establishing that he or she falls within one of the exceptions to the provisions limiting liability for non-notified injuries.
[4] As to what those public policy considerations are, see Saunders and Comcare [2015] AATA 111 at [15].
On the basis, therefore, that notice of the injury was not provided until March 2015, the relevant interval for the purposes of s 53 is a period of at least five years, and most probably eight years. In the Tribunal’s assessment, prejudice has been occasioned to Comcare (and in turn to the ACT) by the length of this interval. This is evident for two reasons.
First, it was apparent at the hearing that the quality of the evidence regarding the cause of the aggravation to Ms Di Carlo-Casablanca’s anorexia had been eroded by the passage of time. This was less true of Ms Di Carlo-Casablanca’s case – which depended heavily on her own evidence and that of Mr Armstrong – than it was of the Territory’s case. The playing field was not a level one, so to speak. Not all the staff at Belconnen High School who had dealt with Ms Di Carlo-Casablanca in the period 2006 to 2010 were available to give evidence (it seemed). Nor was it clear what contribution those missing witnesses might have made to the outcome. With respect to the absence from the witness box of Ms Bruce or Ms Baird, for example, Mr Pattenden submitted any presumed failure on their part to recall the nature of any complaints Ms Di Carlo-Casablanca was making at the time about the working environment could not have served to displace her own evidence on that subject. With respect, that is an ambitious submission. It is theoretically possible that either witness may have had recollections of events which could have tipped the field of play in Comcare’s direction; it is impossible to say what an absent witness’s testimony may have added to the proceedings, a matter which works against the applicant in this context.
Those witnesses who were available often had no clear recollection of the factors at the school said to have been harming Ms Di Carlo-Casablanca’s health. A full picture of those factors was important, given that the doctors who appeared at the hearing were in conflict, and that there was no oral evidence from clinicians who were treating Ms Di Carlo-Casablanca at the time the injury arose. In this scenario, the absence of potentially helpful witnesses and the imperfect recollections of other witnesses were matters that could reasonably be thought to have hampered the ACT’s case.
It is not necessary for the ACT to show that there is specific evidence of which it was aware and which it sought to obtain in the hearing but which, through the effluxion of time, was no longer available to it. It is sufficient if it can be reasonably speculated that such evidence may have existed but cannot now be obtained – what Donald Rumsfeld once controversially referred to as unknown unknowns.[5] This concept was expressed, probably more aptly in the present context, by McHugh J in Taylor at 551:
So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed.
His Honour went on to observe that the longer the delay in commencing proceedings, the more likely it is that the matter will be decided on less evidence than was available at the time the action arose.
[5] Donald Rumsfeld, Known and Unknown: A Memoir, 2011, Sentinel.
That is a reasonable assumption to make in the present circumstances. Both parties’ witnesses at the hearing answered many questions with the reply I don’t recall or its equivalent. Given that the case is finally balancing on the question of work’s contribution to Ms Di Carlo-Casablanca’s injury, it is reasonable to assume that a more ample factual picture could have tipped the proceedings in Comcare’s favour.
The second basis for saying that Comcare has been prejudiced by the failure to give notice for five or more years is that the opportunity earlier notice would have afforded to treat Ms Di Carlo-Casablanca’s injury was lost. The reference to prejudice to the relevant authority in s 53(3)(c) should not be interpreted merely as prejudice on the question of determining liability; it also goes to the question of prejudice in mitigating that liability. Had Comcare been advised in mid-2007 that she was experiencing difficulties at work, it may have been in a position to manage the emerging injury through medical treatment and/or rehabilitation so as to mitigate its severity and perhaps to have prevented it occurring at all. Again, it is not necessary to show that this would most likely have occurred, but simply to demonstrate that it was a reasonable possibility.
An argument was put by Mr Pattenden that Comcare had failed to pursue potentially-available evidence with alacrity, and thus had contributed to the prejudice it supposedly suffered by the passage of time. The failures to obtain the ANU report or to do a Google search of Judy Bruce’s name were cited as examples of a lackadaisical attitude by Comcare toward its responsibilities under s 53. Comcare, in turn, contended that the adjournment of the proceedings between August 2017 and November 2018 provided an opportunity for Ms Di Carlo-Casablanca’s legal advisers to obtain evidence of this kind, an opportunity they apparently eschewed.
Noting that the decision in Leach places the onus on an applicant to establish the existence of one of the exclusionary provisions in s 53(3)(c), it appears that there is some force in Comcare’s submissions on this question. In any case, I am not persuaded that Comcare failed to take reasonable steps to secure the evidence it needed to rebut Ms Di Carlo-Casablanca’s case. I also note that Ms Di Carlo-Casablanca herself, in her later submissions, criticises her (former) legal advisers for, inter alia, the failure to obtain a copy of the ANU report. I take this to be her vacating the argument that Comcare bore that responsibility.
I do not apprehend her to be arguing that there is any other reasonable cause (other than her emaciated brain claim) under s 53(3)(c) which might exclude the operation of the section. Evidence was provided about Ms Di Carlo-Casablanca being distracted by having to move house, and having difficulty obtaining evidence to formulate her workers compensation claim before 2015. I do not consider that either ground falls within the description of any other reasonable cause. If anything, the latter claim reinforces the Territory’s argument that it, too, has been prejudiced by the potential unavailability of evidence due to the late notice.
CONCLUSION
The evidence here comfortably demonstrates that Ms Di Carlo-Casablanca was aware from 2007 onwards that she was sick on account of her employment. Having previously suffered over a long period of time from an eating disorder, it is difficult to accept that she did not recognise the disorder at this juncture, and its status as a mental illness, when it returned. Nor could she have failed to appreciate the likelihood of a link between the work-related stress she was experiencing and the parallel deterioration in her condition. Rather, the evidence suggests that Ms Di Carlo-Casablanca did indeed recognise that her work circumstances were degrading her health, but she chose not to draw attention to this fact. This may have been because to do so may have threatened her ongoing employment as a teacher, or because she did not then appreciate that a work-related mental illness was compensable. The circumstances she found herself in were quite unlike those in Deveson, where the causal link between employment and illness was only uncovered through diligent enquiry. With respect, here it must have been glaringly obvious – even to a person with somewhat impaired judgement – that her work was making her sick. And even if her own insight was obscured, her husband’s was not.
Ms Di Carlo-Casablanca’s otherwise compensable injury is excluded by operation of s 53. The reviewable decision of 19 September 2015 is accordingly affirmed.

I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.

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Associate
Dated: 15 November 2018

Date(s) of hearing:
17 August 2017; 20 November 2018 to 23 November 2018; 13 December 2018.

Date final submissions received: 8 April 2019

Counsel for the Applicant: K Pattenden (until 13 December 2018)

Solicitors for the Applicant:
Slater & Gordon Lawyers (until 13 December 2018)

Counsel for the Respondent: PG Woulfe

Solicitors for the Respondent: Comcare Legal/McInnes Wilson Lawyers

Date(s) of hearing:	17 August 2017; 20 November 2018 to 23 November 2018; 13 December 2018.
Date final submissions received:	8 April 2019
Counsel for the Applicant:	K Pattenden (until 13 December 2018)
Solicitors for the Applicant:	Slater & Gordon Lawyers (until 13 December 2018)
Counsel for the Respondent:	PG Woulfe
Solicitors for the Respondent:	Comcare Legal/McInnes Wilson Lawyers