Djaigween v Douglas

[1994] FCA 951

JLJDGMENT NO. .. ...,..., 9s- 9u -.WNw."

J.N THE FEDERAL COURT OF AUSTRALIA )

1

~USTRALIAN	CAPITAL TERRITORY	i
) No. ACT G 101 of 1993

T REGISTRY )

GENERAL DIVISION )

9N APPEAL FROM THE GENERAL ADMINISTRATIVE

DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: DESMOND JOHN TERRILL

Applicant

AND: GOMCARE

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER : Neaves J.

DATE OF ORDER	:	8 December 1994
WERE MADE	Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

2.   The applicant pay the respondent's costs of and incidental to the application.

: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY	1	NO. ACT G 101 of 1993
D T R I C T REGISTRY
)
GENERAL DIVISION	)

QN APPEAL FROM THE GENERAL ADMINISTRATIVE

BIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: DESMOND JOHN TERRILL

Applicant

AND: COMCARE

Respondent

CORAM: Neaves J.

W: 8 December 1994

REASONS FOR JUDGMENT

Desmond John Terrill ("the applicant") has applied

to this Court by way of appeal pursuant to subs.44(1) of the

Administrative Appeals Tribunal Act 1975 (Cth) from the

decision of the Administrative Appeals Tribunal ("the Tribunal") given on 8 October 1993 affirming the decision made on 26 May 1992 denying the applicant's claim for compensation in respect of cardiovascular disease and stress.

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It is common ground that, although the claim for compensation was made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth), any entitlement of the applicant is to be ascertained by reference to the provisions of the Compensation (Commonweal th Government Employees) Act 1971 (Cth) ("the 1971 Act").

The 1971 Act relevantly provided, by subs.29(1), that where an employee contracted a disease or suffered an aggravation, acceleration or recurrence of a disease and any employment by the Commonwealth was a contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence, as the case might be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment, the succeeding provisions of s.29 had effect. Und@r subs. 29 ( 2 ) , if the total or partial incapacity for work of the employee resulted from the disease, or the aggravation, acceleration or recurrence of the disease, then, for the purposes of the 1971 Act and unless the contrary intention appeared, the contraction of the disease, or the aggravation, acceleration or recurrence, as the case might be, was to be deemed to be personal injury to the employee arising out of the employment of the employee by the Commonwealth and the date of the commencement of the incapacity was to be deemed to be the date of the injury. Under subs .27(1), if personal injury arising out of the employment of an employee by the Commonwealth was caused to the employee, the Commonwealth was,

subject to the 1971 Act, liable to pay compensation in respect

of the injury in accordance with that Act.

The general background to the applicant's claim is set out in the following paragraphs in the Tribunal's reasons for decision:

"4. The Applicant was born on 21 July 1926 at

Rutherglen. He left school at year 10 standard and worked on a farm. Later he farmed on his own account. In 1956, at the urging of his then wife, he ceased farming and moved to Melbourne. Initially he obtained a job repairing television sets but also commenced studies at the Royal Melbourne Institute of Technology and obtained an Associate Diploma in Communications Engineering.

5. In 1965 the applicant was employed by the then

Department of Supply in Melbourne. He left the Public Service to go into private employment in 1968 but rejoined the Commonwealth Public Service in 1970.

6. Upon his return to the Commonwealth Public Service the Applicant underwent a medical examination for superannuation purposes. At his first medical examination he was told that he was overweight and was only eligible for the Provident Fund, not Superannuation. After being in the Provident Fund for two years he applied to be re-examined but was again found to be overweight but a final determination was delayed for three months. At the end of this period the applicant's weight was acceptable and he was admitted to the Commonwealth Superannuation Scheme. In 1971 he had also had a medical examination for Life Insurance purposes. At none of these medical examinations was the Applicant informed that his blood pressure was abnormal. It appears, however, from records produced to the Tribunal that his blood pressure was at this time above what is regarded as normal.

7. After rejoining the Commonwealth Public Service the

Applicant was posted by the Department of Supply to St Marys and was responsible for the testing of electronic equipment. This involved working in an enclosed room monitoring fairly high noise levels. It is the Applicant's contention that this activity led to sensori neural deafness.

8. In 1973 the Applicant applied for and obtained a

position as Station Director of the Satellite Tracking Station at Carnarvon in Western Australia. As the Applicant stated in evidence and was corroborated by his wife, this posting involved physical hardship and was one that his wife hated.

9. During his time at Carnarvon the applicant was

responsible for the winding down of the activities of the station and the disposal of its assets. This was an activity which caused him worry as a lot of the equipment was very valuable and he was answerable to the National Aeronautics and Space Authority in the United States for the disposal of its equipment.

10. In addition the Applicant had the operational

control of the station and its employees and this created its own stresses. Due to time lags he would receive telephone calls from NASA during the early hours of the morning and this was stressful. A major stressor during this period was the 'visit' to the station by a group of protesters who threatened to interfere with the running of the station. During this period the station's perimeter was secured by Commonwealth and State Police.

11. The Tribunal notes that whereas the Applicant had

qualifications as a Communications Engineer, he had no other qualifications or experience which would have fitted him for the administrative role he was required to perform at Carnarvon. Stress is, of course, a subjective matter and the Tribunal accepts that the applicant could well have been put under stress in performing his duties at Carnarvon, for example, as he stated in evidence he found dealing with stores and their dispersal difficult as he regarded it as a specialised task. He also had to maintain relationships with the Carnarvon community, some of whom reacted badly to the news that the facility was closing and seemed to think that the Applicant could do something about it.

12. Whilst at Carnarvon in 1974 the Applicant suffered

what he terms a 'hypertensive crisis'. He was admitted to Carnarvon Hospital having been taken there by his wife who had noted that he was disoriented and incoherent. The Applicant remained in hospital for five days and states that he was told that his blood pressure was 240

over 120-130. On discharge he was given anti-

hypertension medication.

13. Exhibit 5 is a letter from the Carnarvon Hospital.

It states no other records now exist regarding the Applicant's admission except for an entry in the Admission and Discharge Register. This states that the Applicant was admitted for investigation of the urinary tract, but the Tribunal has no basis upon which to doubt the Applicant's evidence that upon discharge he was

prescribed Aldomet which is an anti-hypertensive medication and that he has been taking anti-hypertensive medication since that time.

14. Late 1974 saw the Applicant and his family leave Carnarvon and move to Canberra. The applicant had been promoted to a position in Central Office of the Department of Supply. Work in the period 1975 to 1978 was not stressful but in 1978 the American Skylab Satellite re-entered the earth's atmosphere and fell to ground in Western Australia. In the six weeks leading up to the re-entry of the satellite the Applicant was the only available engineer who could perform the calculations to ascertain where the satellite would fall. In this period he was under considerable pressure as not only his superiors but also politicians were demanding information as to the satellite's likely re-entry point and whether it would be over a populated area. Apart from being responsible for predictions the Applicant also had to deal with the media. That this was a stressful period was confirmed by the Respondent's witness Mr Gray.

15. Shortly after the Skylab incident NASA started to close satellite tracking stations around Canberra and this resulted in engineers senior to the Applicant being made redundant so that they were posted to Central Office in Canberra. As the Applicant put it, his prospects were diminishing with the influx of engineers senior to him.

16. Later there were conflicts within the organisation. When the Applicant first arrived at Canberra he was based at Woden with his own office. Later the Department moved to offices at Belconnen and the Applicant was denied an off ice notwithstanding union intervention on his behalf. There were also personal conflicts with a superior, one Wainwright who had also been station head at Carnarvon. Wainwright had on occasions said to the Applicant:

"You are never going to get promoted while I'm

here " .

A statement which the Applicant resented.

17. The Applicant's deafness had increased, and he became frustrated as not having an office he was unable to hear properly on the telephone. He also found it increasingly difficult to hear at conferences and this increased his stress level as he was concerned not to make a mistake as a result of mishearing.

18. Although the Applicant had been on anti-hypertension medication he was referred to Dr Cassar, Cardiologist, by his General Practitioner in 1981. He was informed by Dr Cassar that he was hypertensive and overweight.

19. In 1984 the Applicant could only walk short distances, for example 10 metres before becoming breathless and having to lie down and rest. He was unable to concentrate and had pains in his legs. He was again referred to Dr Cassar who diagnosed heart failure and prescribed Lanoxin.

20. The Applicant did not return to work and in 1985 was

medically retired from the Commonwealth Public Service.

21. The Applicant's condition between 1985 and 1993 was stable but in January 1993 he suffered a myocardial infarction. Prior to this, although he had had heart disease, he had not suffered an infarct."

In succeeding paragraphs of its reasons for decision the Tribunal referred to what it no doubt considered were the salient parts of the medical evidence before it.

In pars 22 and 23 the Tribunal set out part of the report of Dr E.J. Cassar, Cardiologist, dated 11 April 1990 who had examined the applicant in 1981, 1984 and 1987. The Tribunal made specific reference to Dr Cassar's opinion, which the Tribunal said had been affirmed in his oral evidence, that employment factors as described in the report "should not have contributed in a material degree to the contraction, aggravation or acceleration of the cardiovascular disease and hypertensive left ventricular failure" and to the further opinion that "the natural history of the disease would not have been any different because of work", the risk factors in the applicant's case being heredity and obesity.

Paragraphs 24 - 26 refer to the evidence given by Dr D.M. Coles, Cardiologist, who had treated the applicant since

September 1992. Dr Coles' evidence, as the Tribunal noted,

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was in direct contrast to that of Dr Cassar, Dr Coles being of opinion that, although with the applicant's family history he would probably have developed systemic hypertension, the onset of that condition was hastened by his work.

Reference was then made (pars 27 - 30) to the evidence of Professor M.F. OIRourke, Cardiologist, which was strongly opposed to the theory that stress can contribute to hypertension. An extract from Professor O'Rourke's report dated 18 March 1993 was set out which included the statement that Professor O'Rourke could see "no link between stress and hypertension in the history obtained from Mr Terrill, nor in the T-documents".

Extracts from the report dated 11 March 1991 of Dr D. McGill, Cardiologist, and from the report dated 10 February

1993 of Dr M. Rosenbaum, Cardiologist, were set out in pars 31 and 32. Dr McGill expressed the opinion that "work in general, even perceived stressful work has only a minor part in the overall short and long term effects of hypertension".

Dr Rosenbaum's report expressed the opinion that stress of the type the applicant suffered caused transient elevation of blood pressure at the time he was stressed and that "these transient elevations of blood pressure summated to eventually contribute to the presence of permanently elevated blood pressure". He also expressed the opinion that the

applicant's work was a factor causing high blood pressure

which was "a major cause of the coronary heart disease".

Paragraphs 35 and 36 referred to the report dated 28 September 1990 of Dr R.B. Goldrick, Consultant Physician, and to his oral evidence. Reference was made to Dr Goldrick's opinion that "damage had been caused to the heart by the transient elevations of blood pressure when under work stress".

Paragraphs 43 - 46 of the Tribunal's reasons for

decision read:

"43. The medical evidence in this matter is not conclusive one way or the other. Generally speaking it can be said that the medical practitioners called by the Applicant support a stress hypertension link and those called by the Respondent oppose it. There is also a suggestion that deafness will contribute to stress and the Tribunal can understand this. The only departure from the general run of evidence is the opinion of Dr Goldrick who, although called by the Applicant, rejected the stress hypertension link opining that transitory elevation of blood pressure due to stress caused damage to the heart.

44. Dr Cassar, in a report dated 8 October 1990 to the

Applicant's former solicitors, stated inter alia:

'In the period 1975 to 1978 your client admits to having no employment stresses, neither long hours nor excessive responsibilities/stresses and yet his hypertension was difficult to manage and this is consistent with presumptive diagnosis of Essential Hypertension which your client seemed to be suffering from. Likewise, employment period 1978 to 1982 according to your client was not stressful and the overtime that your client worked and his increased responsibility in the latter part of that decade prior to him seeing me in,early 1981 is also not deemed to have been contributory to your client's medical condition as documented by myself at his first visit to me. Finally in the period

between his first and second visit to me late 1984 your client's blood pressure was as he himself documented on home readings, reasonably well controlled and yet he developed heart failure in the second half of 1984 which was the reason for him returning for consultation, there being no necessity for any specialised medical treatment between January 1981 and November 1984.'

45. The Tribunal accepts that at times the Applicant was

placed under stress in his work. But at the same time there were periods when, on his own admissions, he was not under stress yet his hypertension was difficult to manage. Between 1981 to 1984 he was under stress yet his blood pressure was under control and yet he developed heart failure. Having regard to the totality of the medical evidence the Tribunal is satisfied that the Applicant's hypertension and consequent heart disease was as a result of the following risk factors, namely, genetic propensity and obesity.

46. The Tribunal is not satisfied that the hypertension and consequent heart disease was contributed to or aggravated by work stress (including deafness). The Tribunal accepts that at times stress caused elevations in the Applicant's blood pressure but finds that any such elevation would cease when the stress was removed. In this regard the Tribunal finds that work stress would not have played any part in the Applicant's hypertension post retirement in 1985."

For the applicant, it was contended that, in reaching its conclusion that work stress was not a contributing factor to the applicant's hypertension by the process of reasoning reflected in pars 45 and 46 of its reasons for decision, the Tribunal failed to take into account what was described as "significant evidence" that the Tribunal was obliged to consider.

It was submitted that the Tribunal had failed to take into account certain answers given by Dr Cassar to questions put to him by counsel for the applicant. It was asserted that Dr Cassar had agreed that the events in

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Carnarvon had brought about a significant change in the applicant's condition in 1973-74 and that that evidence added weight to the submission that his condition had been contributed to, or aggravated by, his employment. It was also submitted that the Tribunal, in finding that the applicant's blood pressure was under control from 1981 to 1984, failed to take into account the opinion expressed in Dr Cassar's report dated 4 December 1984 that a factor, additional to his weight increase, which may have contributed to the heart failure he had then suffered was the kind of medication prescribed. It was further submitted that the Tribunal had failed to take into account the evidence of Dr Cassar and that of Dr McGill concerning the level of the applicant's hypertension after his retirement. Reference was made to Dr Cassar's oral evidence that there had been an improvement in the applicant's hypertension between 1984 and November 1987 when Dr Cassar last examined him. Reference was also made to Dr McGill's report dated 11 March 1991 which was said to be to the same effect.

It was also contended on behalf of the applicant that the Tribunal failed to analyse three alternative hypotheses advanced by the medical witnesses any one of which, it was asserted, would have been sufficient to justify a finding in the applicant's favour.

In support of this submission counsel for the

applicant referred to evidence given by Dr Goldrick, by Dr

Rosenbaum and by Dr Cassar. Counsel relied on the evidence of Dr Goldrick, as noted by the Tribunal in its reasons for decision, that transitory elevation of blood pressure due to stress caused damage to the heart. The evidence of Dr Rosenbaum relied upon was the answer given to a question put to him in cross-examination by counsel for the respondent, the question and answer being as follows:

"Q. Might I suggest to you, that it's possible at least, is it not, that, if there was elevated blood pressure during the posting at Carnarvon in 1973, by the time of the incident that occurred medically in 1984, any effect of that 1973 elevation of blood pressure may well have just subsided and gone?

A. No, I disagree with that. I think that once an individual develops permanently elevated blood pressure then it is a persisting condition and, in itself the 1973 episode may be regarded as pre- disposing to the onset of elevated blood pressure, and then many years later to coronary artery disease. I don't believe there could be any dispute about that possibility."

As to Dr Cassar, counsel for the applicant relied on the answers the doctor gave to the following questions he put to him:

"Q. Are you aware that recently there have been suggestions that blood pressure is to a significant degree something that you are genetically predisposed to?

A. Yes.

Q. And that it's not enough to have the genetic predisposition but that environmental factors come into play with that as well?

Q.	So that you have a situation where people may be through heredity susceptible to high blood pressure and then something in their environment which remains to some extent unknown brings it on in them, rather than in other people who might have the same susceptibility?
A.	I think that statement relates to the fact that the environmental stresses are habits and lifestyles that are contrary to medically recommended lifestyles, ie, not watching your weight, not exercising. Given those types of lifestyles, presumably even with a genetic predisposition you can contain it.
Q.	For example, you're aware that recently it's been suggested that even things like changes in temperature can bring about changes in blood pressure readings?

A. Yes.

Q. So that environmental factors are starting to become significant in at least determining who is going to as it were break out?

A. Yes.

Q. --- with this susceptibility that they already have?

A. That's correct.

Q.	And there is also some evidence, is there not, that one of the environmental factors in this area may be stress?
A.	Yes ."

I have considered the whole of the material that was before the Tribunal and I am satisfied that there was ample evidence before it upon which it could properly reach the conclusion expressed in par.46 of its reasons for decision. Having regard to -the content of the paragraphs of the reasons for decision which set out the salient features of the medical

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evidence before it and which are shortly referred to earlier in these reasons, I am unable to conclude that the Tribunal failed to take into account the particular pieces of evidence of Dr Cassar and Dr McGill on which counsel for the applicant relied in supporting his principal submission. One cannot conclude from the fact that the Tribunal did not specifically note the evidence referred to by counsel for the applicant in his submission to this Court that it failed to have regard to it or to give it such weight as it thought appropriate in the light of the totality of the material before it: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at p.621. It is of some significance that, after the conclusion of the taking of oral evidence, it was agreed that the submissions of the parties would be put in writing. The submissions of the parties are in evidence before the Court and a perusal of the applicant's submissions discloses that no particular emphasis was placed on the evidence on which reliance is now placed.

The Tribunal may be criticised for failing to spell out in greater detail than it has done the basis upon which it concluded that it was not satisfied that the hypertension and consequent heart disease was contributed to, or aggravated by, work stress. But a reading of the decision as a whole in the light of the written submissions made to it by the parties makes tolerably clear the basis upon which the Tribunal's decision is based. The deficiency, in my opinion, is not such as to warrant its decision being set aside.

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I turn to the submission that the Tribunal failed to analyse what were referred to by counsel for the applicant as "three alternative hypotheses advanced by the medical witnesses". That submission relied upon the evidence of Dr Goldrick, Dr Rosenbaum and Dr Cassar to which I have referred earlier in these reasons. It is apparent from the Tribunal's reasons for decision (pars 34 - 36) that it had well in mind the opinion of Dr Goldrick that transitory elevation of blood pressure due to stress caused damage to the heart. It is also apparent fram- a consideration of the whole of the material before the Tribunal that no other medical witness expressed an opinion to that effect. It is clear that the Tribunal, for reasons which it considered sufficient, was not prepared to act on Dr Goldrick's opinion as providing a satisfactory basis on which to conclude that the applicant was entitled to compensation.

It is also clear that the Tribunal had well in mind the opinion of Dr Rosenbaum expressed in the answer to the question asked of him by counsel for the respondent. It is true that the Tribunal did not specifically refer to that answer but it set out in par.32 of its reasons for decision that part of Dr Rosenbaum's report dated 10 February 1993 in which the witness expressed a similar view.

The extract from the evidence of Dr Cassar on which

counsel for the applicant relied cannot be considered in

isolation. The answers which the witness then gave are not

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inconsistent with the main thrust of his evidence, evidence on

which the Tribunal clearly relied in reaching its conclusion.

I should add that, in the written submissions put to the Tribunal by counsel for the applicant, no specific reference was made to the matters on which reliance is now placed. The fact that the Tribunal did not expressly deal with them is, therefore, understandable.

It remains to consider a further submission put to the Court on behalf of the applicant. It was submitted that the Tribunal had denied the applicant natural justice in that it took into account alcohol abuse on the part of the applicant as explaining part of his hypertension in the 1970's notwithstanding that during the hearing the applicant was led to believe that alcohol abuse was not an issue of substance but only a matter going to his credit.

Although the Tribunal made reference to the evidence that was given relevant to the question, I am satisfied, upon a reading of the reasons for decision as a whole, that the Tribunal did not find abuse of alcohol as a contributing factor to the applicant's heart disease. I do not regard the Tribunal as saying more than that alcohol intake may have had an effect on the applicant's blood pressure levels but that, if so, the effect was transitory only. To hold otherwise would, in my opinion, be inconsistent with the Tribunal's express statement in par.45 of its reasons for decision that

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the applicant's hypertension and consequent heart disease was

a result of genetic propensity and obesity.

For the above reasons, the application is dismissed. The applicant must pay the respondent's costs of and incidental to the application.

I certify that this and the preceding

15 pages are a true copy of the

Reasons for Judgment herein of the

Dated: 8 December 1994 U

Counsel for the applicant : Mr C.M. Erskine

Solicitors for the applicant : Ken Johnston Bedford & Co.

Counsel for the respondent : Mr M. McInnis

Solicitor for the respondent : Australian Government

Solicitor

Date of hearing	: 23 August 1994
Date of judgment	: 8 December 1994