Gannon and Comcare

[2003] AATA 1058

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1058

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1337

GENERAL ADMINISTRATIVE DIVISION

Re:         OLIVIA GANNON

Applicant

And:       COMCARE

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             9 October 2003

Place:            Melbourne

Decision:For reasons given orally after the hearing the decision under review is affirmed.

(sgd) M.J. Carstairs

Member

COMPENSATION ‑ widow's application ‑ military service ‑ suicide death ‑ promiscuity ‑ venereal disease ‑ whether psychiatric illness ‑ whether personal injury to the employee arising out of the employment with the Commonwealth

Compensation (Commonwealth Government Employees) Act 1971 s29, 54

Safety, Rehabilitation and Compensation Act 1988 s124

Treloar v Australian Telecommunication Commission (1990) 97 ALR 321

Federal Broom Company Pty. Limited v Semlitch (1964) 110 CLR 626

REASONS FOR DECISION

9 October 2003  M.J. Carstairs, Member

1.      This is an application by Olivia Gannon (the applicant) for review of a decision made by Comcare (the respondent) on 28 November 2002 to disallow the applicants claim for compensation in respect of the death of her husband in 1971.

2.      At the hearing the applicant was represented by Mr A. Ware.  Mr J. Lenczner of counsel, instructed by solicitors Dibbs Barker Gosling, represented the respondent.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 ‑ A2 for the applicant and R1 ‑ R3 for the respondent.

BACKGROUND

4.      The applicant is the widow of Edward Sidney Gannon (the deceased) who was born on 20 June 1935.  He enlisted in the Australian Army (the army) on 15 January 1953 and served until 30 January 1971.  The deceased rose to the rank of WO2.  He served in Malaya and Singapore from 20 September 1959 until 1 October 1961.

5.      The deceased committed suicide on 28 October 1971 after earlier attempts that year.  In 2002 the applicant claimed for compensation in respect of the deceased’s death.  Her claim was rejected on 5 October 2002.  The decision to reject the claim was affirmed on review on 28 November 2002.  The applicant sought review by the Tribunal on 9 December 2002.

EVIDENCE

6.      The applicant gave evidence that the deceased had engaged in extra‑marital affairs from a period soon after her marriage in 1955.  She said that her husband’s affairs and promiscuity were common knowledge.  After the birth of their third child (in about 1961), the deceased admitted to visiting prostitutes in Malaya and told her that he was suffering from venereal disease.  She said she did not know where he obtained treatment for the condition.

7.      The applicant said that she believed that her husband was deeply depressed about the time that he left the army.  He had discussed with her his worry that, if sent to Vietnam, he would be killed.  She said that although he left the army on his own initiative, he found that he could not cope with life after his discharge, particularly with the responsibility of supporting a wife and four children.

8.      The applicant said that while the deceased obtained civilian employment, that work ceased some months before his suicide.  At the time of his death the applicant was working as a nurse and supporting the family.  She said she had claimed a pension in respect of her husband’s death, under the applicable repatriation legislation, in late 1971 and again in 2000.  Her claim was rejected in each instance. However, she learned, in the course of the second pension appeal, that she might have a claim under compensation legislation.

9.      In a written statement dated 3 July 2002 (T11), Mr J. Ferguson stated that he had known the deceased during his service, including the period when they were both posted to Malaya.  Although he saw him infrequently there.  He commented on the deceased’s problems with alcohol and his reputation for sexual indiscretion.  He offered the opinion that the deceased regretted taking discharge form the army.

10.     In a written statement dated 15 February 2003 (exhibit A1) Mr D. Yates stated that in Malaya the troops received lectures on venereal disease, and the army issued condoms, and provided information about safe brothels.  In a written statement (undated) (exhibit A2) Mr F. Spicer, who also served in Malaya, also recalled that the army issued condoms and gave lectures.

11.     The deceased’s service medical records (T4, T5), from 1960 onwards, were in the documentary materials before the Tribunal.  According to those records, the deceased was treated for abscesses of the nasal cleft, an injury to his right hand, infectious hepatitis, pneumonia, upper respiratory tract infections and urinary tract infections.  The Discharge History Questionnaire signed by the deceased on 4 January 1971 answered No to the question concerning Mental Illness – Nervous breakdown and the question Venereal Disease. 

12.     The deceased was admitted to Larundel Psychiatric Hospital on 13 June 1971 (T8) and discharged on 7 July 1971.  The diagnosis given was reactive depression.  The admission record stated that he was a 35 year old ex army man, now in civilian life who has made two attempts on his life in the past six weeks.  A form completed on admission, headed Statement of Personal Details of Patient (T8, p84), stated that the duration of the existing attack was six to eight weeks, and that the deceased was suicidal.

CONSIDERATION OF THE ISSUES

13.     The parties agreed that an employee's date of death is the relevant date for determining the legislation under which an entitlement to compensation is to be considered. In this case the operative legislation is the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act). Section 124(3) of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act), read with s29(2) of the 1971 Act, provides for this. The respondent conceded that the applicant’s delay in making the claim was a result of ignorance, so that the claim should be deemed to have been served in accordance with s54(11) of the 1971 Act. The Tribunal agrees that the failure to make the claim within the statutory time limit was a result of ignorance and provides a basis to excuse the delay.

14.     Mr Ware submitted that the deceased’s promiscuity was an illness and that the army did not look after him in regard to that illness.  He submitted that it was clear that the deceased’s promiscuity was a psychological problem.  He said that there was no evidence that the deceased had a psychological assessment prior to joining the army, as was the usual practice.  He implied that the condition of pyelonephritis that the applicant suffered on service might have been related to venereal disease.  He said the army did no more for the deceased than pay him.  He acknowledged that in the discharge medical certificate the deceased had marked No against the question of mental illness or nervous breakdown.  However, he said that soldiers say no on a discharge medical certificate to hasten the process.  He submitted that special consideration should be given to the fact that the applicant was herself unable to recall details, having suffered a stroke.  Mr Ware acknowledged the efforts made by the respondent to assist the applicant to obtain those medical reports still in existence after the deceased’s death.

15.     Mr Lenczner submitted that the primary issue was that the death did not result from any employment‑related illness.  He said that even if the death could be related to the deceased's suffering venereal disease, the condition could not be said to be employment‑related.  The condition would only arise in circumstances outside of the requirements of his service.  Mr Lenczner submitted that authorities such as the Federal Court decision of Treloar v Australian Telecommunication Commission (1990) 97 ALR 321 make plain that compensation for injury or disease, or death consequent upon these, must be related to employment. The respondent’s Statement of Facts and Contentions (exhibit R2) also referred the Tribunal to the High Court decision in Federal Broom Company Pty. Limited v Semlitch (1964) 110 CLR 626.

16.     Mr Lenczner submitted that while the service medical records indicated one reference on 6 April 1967 to "nervous (illegible)", there was nothing to indicate that the deceased was suffering from a depressed mood such as to be considered a mental ailment or morbid condition during his service.  He submitted that there was no evidence of a psychiatric disease before the deceased went to Malaya, when he was in Malaya, or later.  Furthermore, he said, the service medical records did not show the deceased as having suffered bouts of venereal disease.  On his Discharge History Questionnaire the deceased expressly stated that he did not have and had not suffered any venereal diseases as a result of his service.

17.     Mr Lenczner submitted that the statements of the lay witnesses, Mr Ferguson, Mr Yates and Mr Spicer, were of little evidentiary value as they were personal, non‑medical observations. 

18.     Mr Lenczner submitted that the deceased’s decision to have extra‑marital affairs and thereby contract venereal diseases could not be construed as an event or occurrence in the course of his employment, or a characteristic of work performed or the conditions in which that work was performed.  He said that the evidence of Mr Ferguson, as well as that of the applicant, suggested that it was his severance from the army rather than his employment in the army that was the cause of his depressive problems that emerged after his service.  The report from Larundel did not link the diagnosed reactive depression to his service, and gave a clear indication that the condition had not been of lengthy duration, dating from May 1971.

19.     Mr Lenczner referred to provisions that exclude the Commonwealth's liability to pay compensation where an injury to an employee is intentionally self‑inflicted.  He also referred to s5(10) of the 1988 Act that precludes compensation where a member of the defence force has operational service under the Veterans' Entitlements Act 1986. He also submitted that a question arose as to whether the applicant was a dependant at the time of her husband’s death.

20. The Tribunal reached its decision taking into account the oral and documentary evidence and the submissions at the hearing. Section 29 of the 1971 Act provides that there is entitlement to compensation where:

29.(1)  Where-

(a) an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and

(b) any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment…

21.     The High Court in Federal Broom Company Pty Limited v Semlitch (1964) 64 CLR 626 stated that there must be established some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed in order for employment to be a contributing factor. The Federal Court said in Treloar (at 328):

… In all cases the question is whether there has been a "contribution"…

The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature.  It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.  Once the link is established, however, it matters not that the contribution be large or small.

…

22.     The Tribunal accepts the respondent’s submission that there is no causal connection between the suicide of the deceased and his service employment.   There is simply no evidence from the contemporaneous service records that points to a psychiatric condition, or to venereal disease, that might in some way be linked to the deceased’s suicide.  The submissions made on behalf of the applicant leave these matters in the realm of speculation and of conjecture.  The Tribunal rejects the submission that the issuing of condoms to servicemen creates a link between what might be done out of hours and their employment as soldiers.

23.     The Tribunal finds that the only evidence of a depressive condition linked to the deceased’s death is a short‑term reactive depression after his service.  Despite the problems that the deceased had with alcohol and promiscuity, he had a successful military career rising to the rank of WO2.  The evidence before the Tribunal from the applicant and Mr Ferguson suggests that the deceased had a difficult adjustment to civilian life.  But this is not a matter that links his depressive state to an incident or state of affairs that the worker was exposed to in the performance of his duties, as required by Federal Broom Company Pty. Limited per Kitto J.

24.     In view of the Tribunal’s conclusions on the matter of liability there is no need to address the other matters raised by the respondent in submissions and referred to in paragraph 19.

DECISION

25.     For reasons given orally after the hearing the decision under review is affirmed.

I certify that the twenty‑five [25] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Dates of hearing:  8 October 2003

Date of decision:  9 October 2003

Solicitor for applicant:                  Nil ‑ self‑represented
Counsel for respondent:              Mr J. Lenczner

Solicitor for respondent:              Dibbs Barker Gosling