Dunstan v Comcare

Case [2006] FCA 1655

FEDERAL COURT OF AUSTRALIA

Dunstan v Comcare [2006] FCA 1655

ADMINISTRATIVE LAW – Application by way of appeal from the Administrative Appeals Tribunal – applicant claimed entitlement to compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for depression caused by relationship with co-worker – whether depression a “disease” as defined in s 4 – whether depression contributed to in a material degree by applicant’s employment

HELD – Application allowed

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)

Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885 referred to
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 discussed
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 discussed
Comcare v Canute (2005) 148 FCR 232 referred to
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 referred to
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 referred to

COLIN GEORGE DUNSTAN v COMCARE

ACD 47 OF 1996

MANSFIELD J
11 DECEMBER 2006
ADELAIDE (HEARD IN CANBERRA)


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 47 OF 1996

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

COMCARE
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

11 DECEMBER 2006

WHERE MADE:

ADELAIDE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.The application be allowed. 

2.The decision of the Administrative Appeals Tribunal of 28 June 1996 be set aside.

3.The matter be remitted to the Administrative Appeals Tribunal for reconsideration. 

4.The respondent pay to the applicant any disbursements properly incurred on the application.

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


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 47 OF 1996

BETWEEN:

COLIN GEORGE DUNSTAN
Applicant

AND:

COMCARE
Respondent

JUDGE:

MANSFIELD J

DATE:

11 DECEMBER 2006

PLACE:

ADELAIDE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

INTRODUCTION

  1. Mr Dunstan has appealed from a decision of the Administrative Appeals Tribunal given on 28 June 1996.  The reasons for the delay in disposing of his appeal are explained in Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 284 at [11]-[23]. It is not necessary to repeat them.

  2. The AAT affirmed a decision of Comcare of 7 June 1995 under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) that (as the AAT described it) Mr Dunstan had “not at any time since February 1987 suffered an ailment that was contributed to in a material degree by his employment with the Australian Taxation Office”. In his application for compensation of 26 May 1994, Mr Dunstan claimed to have suffered depression which he first noticed in June 1991 and for which he first sought medical treatment on 11 July 1991. He claimed to have been unfit for work because of his depression only for the periods 11 to 16 July 1991 and 3 to 10 April 1992.…

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AGLC
Dunstan v Comcare [2006] FCA 1655
Case
[2006] FCA 1655
Decision Date

CaseChat Overview and Summary

In the case of Dunstan v Comcare, the primary issue was whether the applicant's depression, which arose from a personal relationship with a female colleague, constituted a compensable injury under the Safety, Rehabilitation and Compensation Act 1988. The applicant, Mr Dunstan, contended that his employment with the Australian Taxation Office contributed materially to his depression, warranting compensation. The Administrative Appeals Tribunal (AAT) had previously rejected his claim, leading Mr Dunstan to appeal to the Federal Court of Australia.

The legal issues the court was required to decide involved the interpretation of the Act's definition of "injury" and "disease," and whether Mr Dunstan's employment contributed to his depression in a material degree. Specifically, the court needed to determine whether Mr Dunstan's depression was a compensable disease under the Act and whether it was caused by his employment. The AAT had concluded that Mr Dunstan's employment did not contribute materially to his depression, but Mr Dunstan argued that the AAT erred in its interpretation of the relevant statutory provisions.

The court found that the AAT's reasoning contained an error of law. It distinguished between physical injuries occurring at work and mental injuries, holding that for the latter, the employee's actions must amount to a contribution by their employment. The court held that the AAT misunderstood the causation requirement, misapplying the legal principles established in relevant case law. By not considering whether the workplace exposure to the harassing conduct materially contributed to Mr Dunstan's depression, the AAT failed to properly apply the law. Consequently, the court allowed the appeal, set aside the AAT's decision, and remitted the matter back to the AAT for reconsideration.

The orders made by the court were that the application be allowed, the decision of the AAT be set aside, the matter be remitted to the AAT for reconsideration, and the respondent pay the applicant's disbursements incurred on the application.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Administrative Appeals Tribunal of 28 June 1996 be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal for reconsideration.

4. The respondent pay to the applicant any disbursements properly incurred on the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J
The hearing was, however, adjourned for some three hours to enable Mr Dunstan to review certain documents relevant to the application which he had not brought to Court.THE DECISION OF THE AAT The AAT assumed in Mr Dunstan’s favour that, at least from the time when Mr Dunstan and the female employee worked in the same section of the ATO, they developed an “intense and troubled personal relationship with a sexual dimension”, initiated by the female employee, and which placed a great strain on Mr Dunstan and his family, resulting in him suffering depression and the two periods of incapacity referred to. Those assumptions, as Mr Dunstan accepted during the hearing, represented a picture of the material before the AAT with which he did not disagree. It then became necessary for the AAT to decide whether the depression constituted a compensable injury under the SRC Act. The SRC Act defines ‘injury’ in s 4 as meaning:“(a) a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.” The focus of the AAT’s attention was on whether Mr Dunstan’s depression was a compensable disease, so as to fall within subcl (a) of the definition of injury. It did not separately consider whether his depression might fall within subcl (b) or (c) of the definition of injury. Its failure to do so is one of the grounds of legal error asserted by Mr Dunstan. That contention is considered below. In turn, “disease” is defined in s 4 as meaning:“(a) any ailment suffered by an employee; or(b) the aggravation of any such ailment;being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”“Ailment” is defined as meaning:“ … any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” The AAT’s decision turned upon the causation requirement imposed by, or contained in, the definition of “disease”. The AAT was not satisfied that Mr Dunstan’s depression was contributed to in a material degree by his employment with the ATO (or his earlier employment). In addressing that question, the AAT after reviewing certain authorities said:“The focus must be on the work of the employee – what he or she is required to do, or to be, and so forth, in the doing of her or his work.”After discussing the expression “in a material degree”, the AAT referred to the relevant issue in terms similar to the above. It said:“ … the issue for consideration under the Act is whether what the employee in fact does in her or his employment contributes in a material way to the contracting of, acceleration of, or aggravation of the disease.” The word “disease” in that passage should more accurately be the word “ailment”, if the definitions in the Act are to be used, because an ailment or condition only becomes a “disease” as defined once the causative element is found to exist. It is, however, clear enough what the AAT intended to say.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

The AAT expressly distinguished between circumstances where the “actions of an employee amount to a contribution by the employment” and where the “actions arose in the course of the employment of the employee who was affected by those actions”. It remarked that the issue is quite different where the injury is a physical insult occurring at work at a particular time, even caused by an employee “not acting as such”. In that case, it said, the injury would have occurred in the course of the employment. The distinguishing feature was said to be that where (as here) the injury is a disease or its aggravation, “the actions of the employee” [must] amount to a contribution by the employment of the employee who suffered the disease.CONSIDERATION As my reference to the AAT’s reasons indicates, I have had some difficulty in understanding parts of it. I am mindful that I should not read the reasons with an eye “keenly attuned” to the perception of error (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287), but that does not relieve me of the obligation to identify why the AAT decided as it did. It is part of the function of reasons for decision to provide that enlightenment. Were the AAT’s reasons along the lines contended for by Comcare, as discussed in [19] above, they would reveal no error of law of the kind first asserted by Mr Dunstan. However, I do not think that is how it reasoned. In my view, the AAT – having in essence assumed the factual picture to be as Mr Dunstan asserted – directed itself that the harassing conduct of the female employee which caused Mr Dunstan’s depression, even if it occurred to a significant degree in the workplace, could not as a matter of law support a conclusion that his employment contributed in a material way to his depression. That view results from an analysis of the whole of its reasons, but in particular the concluding sentence in the passage referred to in [22] above. It is fortified by the AAT’s comments about there being no need for expert medical evidence on the issue of causation, as the irrelevance of such evidence could only be on the basis that an expert medical opinion on the part played by certain (assumed) conduct of the female employee at work in her dealings with Mr Dunstan to the onset of his depression could not assist. I consider that approach involves an error of law. Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 established that a state of affairs to which a worker was exposed in employment and to which he would not otherwise have been exposed may be the cause of, or a contributing factor towards, the suffering or aggravation of a disease so as to entitle the worker to compensation: see generally the discussion in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 322-323. Treloar concerned a claim under the Compensation (Commonwealth Government Employees) Act1971 (Cth). That Act was replaced by the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) (now the SRC Act).