Griffin v Qantas Airways Ltd
[2010] NSWWCCPD 22
•8 March 2010
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Griffin v Qantas Airways Ltd [2010] NSWWCCPD 22 | ||||||
| APPELLANT: | Bryan Arthur Griffin | ||||||
| RESPONDENT: | Qantas Airways Ltd | ||||||
| INSURER: | Self insured | ||||||
| FILE NUMBER: | A1-8050/08 | ||||||
| ARBITRATOR: | Mr D. Minus | ||||||
| DATE OF ARBITRATOR’S DECISION: | 4 March 2009 | ||||||
| DATE OF APPEAL HEARING: | 30 November 2009; 23 February 2010 | ||||||
| DATE OF APPEAL DECISION: | 8 March 2010 | ||||||
| SUBJECT MATTER OF DECISION: | Psychological injury; causation; aggravation, acceleration and exacerbation of disease; delay in giving notice of claim; ignorance; serious and permanent disablement; section 261 of the Workplace Injury Management and Workers Compensation Act 1998; incapacity | ||||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||||
| HEARING: | Oral | ||||||
| REPRESENTATION: | Appellant: | Mr P Stockley, counsel, instructed by Mr Griffin | |||||
| Respondent: | Mr J Catsanos, counsel, instructed by HWL Ebsworth | ||||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 4 March 2009 is revoked and the following orders made: “1. The respondent employer is to pay the applicant worker weekly compensation on the basis of total incapacity from 10 September 1979 to 6 November 1979 in the sum of $961.50. 2. The respondent employer is to pay to the applicant worker weekly compensation on the basis of partial incapacity under section 11(1) of the Workers Compensation Act 1926, as saved under Schedule 6 of the Workers Compensation Act 1987 (‘the 1987 Act’), in the following amounts: (a) 19/5/1982 – 30/9/1982 $162.00 (b) 1/10/1982 – 31/3/1983 $173.60 (c) 1/4/1983 – 25/8/1983 $179.70 (d) 26/8/1983 – 30/9/1983 $164.40 (e) 1/10/1983 – 31/3/1984 $164.40 (f) 1/4/1984 – 30/9/1984 $171.90 (g) 1/10/1984 – 4/2/1985 $179.20 (h) 5/2/1985 – 30/9/1985 $162.50 (i) 1/10/1985 – 31/3/1986 $167.80 (j) 1/4/1986 – 30/9/1986 $172.70 (k) 1/10/1986 – 31/3/1987 $172.70 (l) 1/4/1987 – 30/9/1987 $177.20 (m) 1/10/1987 – 31/3/1988 $182.20 (n) 1/4/1988 – 30/9/1988 $184.70 (o) 1/10/1988 – 31/3/1989 $188.70 (p) 1/4/1989 – 30/9/1989 $193.40 (q) 1/10/1989 – 31/3/1990 $200.40 (r) 1/4/1990 – 30/9/1990 $204.70 (s) 1/10/1990 – 31/3/1991 $192.10 (t) 1/4/1991 – 30/9/1991 $194.60 (u) 1/10/1991 – 31/3/1992 $196.00 (v) 1/4/1992 – 30/9/1992 $201.80 (w) 1/10/1992 – 31/3/1993 $204.40 (x) 1/4/1993 – 30/9/1993 $205.10 (y) 1/10/1993 – 31/3/1994 $206.20 (z) 1/4/1994 – 30/9/1994 $207.10 (aa) 1/10/1994 – 31/3/1995 $208.40 (bb) 1/4/1995 – 30/9/1995 $209.00 (cc) 1/10/1995 - 31/3/1996 $210.10 (dd) 1/4/1996 – 30/9/1996 $211.40 (ee) 1/10/1996 – 31/3/1997 $212.90 (ff) 1/4/1997 – 30/9/1997 $213.70 (gg) 1/10/1997 – 31/3/1998 $217.70 (hh) 1/4/1998 – 30/9/1998 $219.40 (ii) 1/10/1998 – 31/3/1999 $223.30 (jj) 1/4/1999 – 6/9/1999 $227.20 3. The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the 1987 Act. 4. The respondent employer is to pay the applicant worker’s disbursements.” | ||||||
| The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200.00 plus GST. | |||||||
BACKGROUND
The appellant worker, Mr Griffin, started work as a pilot with Qantas in 1966. In August 1979, he was due for his six-month licence renewal as a first officer on a Boeing 747. That required a ‘check captain’, Captain Anstee, to conduct an in-flight check of certain safety procedures. Captain Anstee conducted that check without incident on a flight from Singapore to Perth on 29 August 1979.
On the return leg from Perth to Singapore on the same day, Mr Griffin rehearsed certain emergency procedures in his head. One procedure (loss of all generators) required that an “engine shut down procedure” be followed and that the start levers be moved to the off position to turn off the fuel to the engines. Whilst going over this procedure in his mind, his hand involuntarily moved towards the start levers. He left the flight deck and, once he felt calm enough, he resumed his seat.
His urge to move the start lever to the off position returned on the Singapore to Sydney leg and he told Captain Anstee of this urge and was permitted to leave the flight deck. After arriving in Sydney, several doctors examined Mr Griffin and ultimately declared him fit to fly. He continued to fly, though with increasing levels of anxiety and an increasing urge to move the start levers to the off position, until he resigned on 16 May 1982.
After resigning from Qantas, Mr Griffin never flew commercial aircraft again. He unsuccessfully pursued some business interests in Australia and then moved to England, New Zealand, and England again, and then returned to Australia in 1994. After initially pursuing a claim for loss-of-licence insurance in 2001 and then a claim for compensation on Comcare in 2008, he ultimately completed a claim form seeking workers’ compensation benefits from Qantas on 22 July 2008 alleging that he suffered from obsessive compulsive disorder and depression as a result of the incident on the Perth to Singapore flight on 29 August 1979.
In a section 74 notice dated 12 August 2008, Qantas disputed liability on the grounds that:
(a) Mr Griffin had not suffered an injury within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’) on 29 August 1979 or on any other occasion;
(b) Mr Griffin was not incapacitated for work as a result of any injury within the meaning of the 1987 Act;
(c) if Mr Griffin had suffered a psychological or psychiatric condition, it resulted from events that occurred before he started work with Qantas and/or after he ceased to be employed by Qantas and/or from constitutional factors, and
(d) Mr Griffin had not claimed compensation within the time prescribed (six months after the injury) under the legislation.
Without the benefit of legal advice or representation, Mr Griffin filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 8 October 2009. He did not properly particularise how his injury occurred, but merely said, “See attached documents”.
Qantas filed a Reply on 28 October 2009 relying on the matters set out in its section 74 notice of 12 August 2008.
After a lengthy teleconference on 11 November 2008, the Commission listed the matter for conciliation and arbitration on 30 January 2009 and urged Mr Griffin to obtain legal representation. Notwithstanding efforts to obtain representation, Mr Griffin remained unrepresented throughout the conciliation and arbitration process. At the arbitration, counsel for Qantas, Mr Catsanos, cross-examined Mr Griffin at length and made lengthy submissions. Mr Griffin made various statements about his claim that demonstrated he had no understanding of the nature of his claim or the legal issues involved.
In a decision delivered on 4 March 2009, the Arbitrator found that Mr Griffin suffered from constitutionally based obsessive compulsive disorder that had not been caused by or contributed to by his employment and he made an award for the respondent with no order as to costs.
By an appeal filed on 1 April 2009, Mr Griffin, still unrepresented, sought leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY ISSUES
Legal representation
At a teleconference on 10 July 2009 Mr Griffin was still unrepresented. Mr Catsanos, barrister instructed by Mr Bell, represented Qantas. Mr Griffin had little insight into the nature of the proceedings or the legal issues involved. I informed him that it would be prudent for him to obtain legal advice and that the Commission had an obligation to determine cases according to their substantial merits and, given the state of preparation of his claim, that was not possible in this matter. The Commission also had an obligation under its Access and Equity Charter to explain to unrepresented parties their options for obtaining legal assistance. He said he had tried unsuccessfully to obtain legal representation, but was content for a member of the Commission’s staff to contact him and explain his options for obtaining legal advice. At my request, an officer from the Commission contacted Mr Griffin after the teleconference to provide that assistance. Ultimately, Mr Griffin instructed Mr Stockley, barrister, to represent him.
Fresh evidence
At a second teleconference on 30 July 2009, Mr Stockley represented Mr Griffin, and Mr Catsanos and Mr Bell represented Qantas. I indicated that, given the unusual circumstances of this matter, it might be necessary for the review to be conducted as a hearing de novo (Sapina v Coles Myer Limited [2009] NSWCA 71). After hearing submissions, I granted Mr Stockley leave to file additional submissions and evidence, and amended pleadings by 27 August 2009 and for Qantas to file documents in response by 8 October 2009. Mr Stockley filed and served those documents (including a schedule of proposed amendments in the terms set out at [22] below) on 27 August 2009. On 2 October 2009, Qantas filed a report from Dr Allan White, psychiatrist, dated 21 September 2009.
At a further teleconference on 8 October 2009, the parties advised that additional documents had only just become available from Qantas. Mr Catsanos sought further time to obtain evidence from personnel who worked with Mr Griffin at Qantas in 1979 (Captain Anstee) or, alternatively, evidence that those people were no longer available or had no recollection of the events in issue, and to “cover all the issues” (teleconference 8 October 2009 T4.59). I gave both sides liberty to file further evidence on or before 22 October 2009 and listed the matter for oral hearing on 30 November 2009. On Mr Catsanos’ application, I gave leave for Dr Phillips (Mr Griffin’s qualified psychiatrist) to be cross-examined and for Mr Griffin to be further cross-examined. Pursuant to leave given on 8 October 2009, both sides filed additional evidence by 22 October 2009.
In view of the way the matter proceeded at the arbitration (with issues having not been properly presented or argued, mainly as a result of Mr Griffin not having had legal representation) and given the nature of Mr Griffin’s psychological condition and that the review was to be conducted effectively as a hearing de novo (but with the evidence from the arbitration to be evidence on review), I formed the view that it was in the interests of justice that the additional evidence and fresh evidence from both parties be admitted into evidence on review (Haider v JP Morgan Holdings Aust t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634).
In the end, Mr Griffin filed the following additional or fresh evidence on appeal:
(a) Aircraft Safety Incident Report signed by Captain Gillies dated 22 August 1980;
(b) Confidential Crew Report signed by Captain Brooks dated 28 November 1981;
(c) Flight Training Report signed by Captain Brooks dated 28 November 1981;
(d) email from Mr Griffin to “avmed” dated 23 November 1999;
(e) letter from A.H McCord (Qantas) to Mr Griffin dated 4 January 2000;
(f) email from Wes Nobelius (Qantas) to Mr Griffin dated 29 May 2001;
(g) letter from Dennis & Company to Wes Nobelius (Qantas) dated 18 June 2001;
(h) fax from Wes Nobelius (Qantas) to Dennis & Company dated 26 July 2001;
(i) letter from Brett Johnson (Qantas) to Mr Griffin dated 27 July 2001;
(j) fax from Wes Nobelius (Qantas) to Dennis & Company dated 3 October 2001;
(k) letter from Dennis & Company to Wes Nobelius (Qantas) dated 10 October 2001;
(l) email from Wes Nobelius (Qantas) to Dennis & Company dated 19 November 2001;
(m) letter from Dennis & Company to GIO dated 30 November 2001;
(n) letter from Dennis & Company to GIO dated 8 January 2002;
(o) letter from Dennis & Company to Wes Nobelius (Qantas) dated 8 March 2002;
(p) fax from Wes Nobelius (Qantas) to Dennis & Company dated 12 March 2002;
(q) email from Bruce Hocking (Dennis & Company) to Wes Nobelius (Qantas) dated 17 May 2002;
(r) incomplete letter from unknown author (presumably Dennis & Company) to Wes Nobelius (Qantas) dated 20 May 2002;
(s) email correspondence between Wes Nobelius (Qantas) and Bruce Hocking (Dennis & Company) dated 22 May 2002;
(t) email from Wes Nobelius (Qantas) to Bruce Hocking (Dennis & Company dated 22 July 2002;
(u) email from Wes Nobelius (Qantas) to Dennis & Company dated 28 September 2002;
(v) letter from Dennis & Company to Wes Nobelius (Qantas) dated 8 November 2002;
(w) email from Paulina Fica (solicitor, Turner Freeman) to Mr Griffin dated 22 September 2004;
(x) email from Mr Griffin to Mr Carr, Premier of NSW, dated 22 September 2004;
(y) email from Mr Griffin to Mr Carr, Premier of NSW, cc media dated 26 October 2004;
(z) letter from Mr Griffin to Mr Iemma, Premier of NSW, dated 14 November 2006;
(aa) letter from The Cabinet Office NSW to Mr Griffin dated 29 November 2006;
(bb) letter from Attorney-General’s Department (Federal) to Mr Griffin dated 26 February 2008;
(cc) undated letter from Comcare (Mr Ellis) to Mr Griffin responding to Mr Griffin’s letter of 16 May 2008;
(dd) email from Mr Griffin to Qantas dated 19 August 2008;
(ee) email from Mr Griffin to Qantas dated 26 August 2008;
(ff) email from Mr Griffin to NSW Medical Board and Qantas dated 28 August 2008;
(gg) email from Mr Griffin to Qantas dated 5 October 2008;
(hh) letter qualifying Dr Phillips dated 17 August 2009
(ii) statement of Mr Griffin dated 26 August 2009;
(jj) statement of Mr Griffin dated 21 October 2009, and
(kk) medical reports of Dr Jonathon Phillips, psychiatrist, dated 19 March 2009, 3 June 2009 and 21 August 2009.
Qantas filed the following additional or fresh evidence:
(a) Flight Training Report by Captain Anstee dated 29 August 1979;
(b) medical report of Dr Allan White, psychiatrist, dated 21 September 2009, and
(c) statement from Douglas George Anstee dated 19 October 2009.
At the hearing on 30 November 2009, I gave Qantas leave, over objection, to file a further report from Dr Allan White dated 22 October 2009 on the condition that Mr Stockley could lead additional oral evidence from Dr Phillips to deal with any matters in Dr White’s report.
Pleadings
By notice dated 26 August 2009, Mr Stockley sought to amend the Application in the following respects:
“Date of Injury: 29 August 1979
Alternatively the nature and conditions of employment between January 1979 and 16 May 1982
Alternatively 10 September 1979.
Place of Injury: 747 flight deck
Description of Injury: obsessive compulsive disorder
How Injury Occurred: obsessive compulsive disorder caused and/or aggravated by the nature and conditions of employment between 1979 and 18 May 1982, including:
(a)practising safety procedures in the cockpit of a 747 aircraft on 29 August 1979;
(b)continuing to perform flying duties as a first officer after the manifestation of symptoms of obsessive compulsive disorder on 29 August 1979.
Compensation claimed: 10 September 1979 to 6 November 1979 and from 19 May 1982 to 6 September 1999.”
At the hearing on 30 November 2009, Mr Catsanos objected to these amendments. He argued that Qantas was prejudiced because of the passage of time. He relied on Parsons v Doukas [2001] NSWCA 128, a case where the Court of Appeal dismissed an appeal from the trial judge’s refusal to extend time to commence proceedings under the Motor Accidents Act 1988. Sheller JA noted his decision in Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR where it was held that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant.
I did not accept that the amendments involved any prejudice to Qantas. Mr Stockley fully particularised the proposed amendments in a letter dated 26 August 2009 and filed on 27 August 2009. I allowed the amendments and gave leave to Qantas to further cross-examine Mr Griffin and to cross-examine Dr Phillips. In addition, on 8 October 2009 I gave Qantas further time to obtain evidence from relevant witnesses. That evidence was obtained and filed on 22 October 2009. On 30 November 2009, I gave Qantas leave to file an additional report from Dr Allan White. Qantas has pointed to no actual prejudice. In the circumstances I was and am satisfied that, given the Commission’s statutory obligation to act according to equity, good conscience and the substantial merits of the case (section 354(3) of the 1998 Act), and given the history of the matter, it was appropriate to allow the amendments.
THE EVIDENCE
Mr Griffin’s evidence
At the arbitration, Mr Griffin tendered three chapters from a book he wrote called “One Obsession, Two Obsession, Three Obsession, Four”. The book has been written in first person and the Arbitrator accepted it (without objection) as Mr Griffin’s evidence in support of his claim. On appeal, Mr Griffin tendered additional statements dated 26 August 2009 (dealing with the delay in making the claim) and 21 October 2009 (dealing with dependency and providing details of former Qantas pilots with whom he had flown).
Mr Griffin was born in New Zealand in 1939. He started his flying career in 1961. He obtained a commercial pilots licence in Christchurch in November 1962 and joined Qantas in May 1966. He became a first officer on Boeing 707s in 1970.
In November 1973, he was struck on the head by a hammer while constructing a swimming pool at his home. As a result of continuing headaches, he underwent a brain scan in 1974. In the course of that scan, his body shook uncontrollably and he screamed to be let out. He felt that it must have been the fear of his “childhood headlocks that started a chain reaction” (Chapter 9). The headaches from the head injury continued for some months, but were resolved with chiropractic treatment.
In March 1979, Mr Griffin became a first officer on Boeing 747s. In August 1979, he was rostered to fly from Sydney to Singapore to Perth to Singapore and back to Sydney. Mr Griffin described the first sector from Sydney to Singapore as “so pleasant that pilots should have paid the passengers for the privilege of flying this magnificent machine” (Chapter 7). On his rest day in Singapore, he took the flight crew to see a yacht on which he had been working. The following day, he was “pleased” when the check captain he was flying with agreed to give him his six monthly flight check on the flight from Singapore to Perth. He said, “the captain was a gentleman and made me feel very comfortable when I ordered the fuel for the flight to Perth”.
In respect of the flight check, Mr Griffin said:
“As well as checking on my operation of the aircraft it was also the check captain’s duty to examine me on the emergency procedures. With perfect weather, a great friendly crew, I passed the route check with a very favourable mark. I was pleased that this test was now out of the way, and the three month conversion and probation period were behind me. The captain flew the return flight to Singapore, and the atmosphere on the flight deck was as good as it gets, which in turn makes for a very safe operation.”
Mr Griffin then described certain in-flight emergency procedures. Most emergencies are divided into two sections, “phase 1” and “phase 2”. Pilots are required to know phase 1 off by heart so that the procedure is automatic in the event that it is needed.
On the flight from Perth to Singapore, Mr Griffin decided to make good use of some quiet time by going over the phase 1 emergency procedures in his head. One of the emergency procedures (loss of all generators) required that an “engine shut-down procedure” be followed before restarting any failed engine. The checklist required that the start lever be moved into the off position to turn off fuel to the engine and to then place the thrust lever in idle. Whilst going over this procedure in his mind, he became terrified when his left hand involuntarily moved towards the start levers. He says that he “struggled with the uncontrollable limb as though it wasn’t mine”. Beads of perspiration covered his body and he began to shake uncontrollably. He made an excuse to leave the flight deck and smoked several cigarettes until he felt calm enough to resume his seat. His “pain and terror dissipated” and he arrived in Singapore without “being tortured again”.
A similar incident happened again when flying from Singapore to Sydney. Mr Griffin felt his hand was “being abused by the uncontrollable pull of the start levers”. Eventually he told the captain of his urge and requested permission to leave the flight deck. The captain consented to Mr Griffin leaving the flight deck.
Mr Anstee’s evidence is that the training leg of the flight (Singapore to Perth) and the return leg to Singapore passed without incident. However, on the next flight (Singapore to Sydney) Mr Griffin said to him words to the effect “I was wondering what would happen if I closed down all the start levers”. Mr Anstee was surprised, as he had never heard anything like that before, and he thought that Mr Griffin might have a mental problem. He ordered Mr Griffin out of the operating seat for the remainder of the flight. On arrival in Sydney, Mr Anstee reported the incident to the senior pilot and told Mr Griffin he should report to the medical centre.
After arriving in Sydney arrangements were made for Mr Griffin to see a Qantas doctor and he was referred for consultations with a number of psychiatrists. He stated that the third psychiatrist handed him over to a nurse for “thought-stopping treatment” and that he was given a book called “cure without drugs”. The nurse gave him some relaxation exercises and a rubber band to wear on his wrist. He was instructed that each time he had an irrational thought he was to twang the rubber band and switch his thoughts to other matters, such as sailing his yacht.
He was cleared to return to flying on 6 November 1979.
Though he used the distraction techniques (twanging a rubber band on his wrist) shown to him by one of the doctors, his anxiety continued. On most flights, he asked the captain or engineer if he could place the fuel plan on top of the start levers to cover them from his view. When the captain asked “why?” he would explain his compulsion. His heart would be pounding and panic would fill his stomach.
Mr Griffin felt that he was “getting worse” (arbitration hearing T5.54 and T17.33) and that he was “more frightened” every time he got in the aeroplane (arbitration hearing T7.25). On 19 July 1980 on a flight from Singapore to Bahrain, he told the captain (Captain Gillies) of his illness and the captain immediately ordered from the flight deck. On arrival in Bahrain, the captain conducted a conference call with the Qantas doctor and two senior pilots and the captain was told that Mr Griffin’s illness was no more serious than a sore toe and that Mr Griffin was to continue flying as the first officer.
Captain Gillies prepared an Aircraft Safety Incident Report on 22 August 1980 in which he related his experience with Mr Griffin on the Singapore to Bahrain flight in July. He reported that Mr Griffin told him that he may have to “give up flying” because of an “obsessional” problem from which he suffered. Captain Gillies added:
“He told me a somewhat confusing story of an ‘obsessional’ thought about closing the start levers, a left arm that ‘feels as though it is limbo’ and about it only happening on long night sectors when he is under stress. He also suggested that I shouldn’t place any stress on him for this reason.”
In September 1980, Mr Griffin’s general practitioner, Dr Wienholt, prescribed serapax to treat his anxiety. Mr Griffin devised techniques to keep himself occupied on the flight deck.
In November 1981 on a flight from Sydney to Honolulu, Mr Griffin programmed west instead of east into the aircraft navigation system. A few days later he was flying from Los Angeles to Honolulu when he became confused and the captain (Captain Brooks) removed him from the flight deck. On arrival in Honolulu, Mr Griffin telephoned Qantas operations and said that he was having “reoccurring mental problems” and he requested a ticket to return to Sydney as a passenger. At this stage his compulsion was to close the start levers on take-off as opposed to while the aircraft was in cruise mode (arbitration hearing T8.36) and he “knew [he] was going to do it” (arbitration hearing T8.13).
While flying to Sydney from Honolulu as a passenger Mr Griffin felt that his flying career was over. It seemed obvious that the pain he was getting all through his body would never go away while he was flying a Boeing 747 (chapter nine of Mr Griffin’s book).
Captain Brooks prepared a crew report on 28 November 1981 in which he said that Mr Griffin displayed the lowest standard of aircraft technical and professional knowledge he had ever seen. The extent of Mr Griffin’s lack of professional knowledge was “so extreme” it made Captain Brooks suspect that it was psychological. Mr Griffin admitted to Captain Brooks that he “still suffered from some sort of mental obsession connected with flying of which he was supposed to be cured”. Mr Griffin stood himself down from flying and Captain Brooks recommended that he be extensively tested “both in medical and professional spheres” before he ever returned to flying duties.
In December 1981, Mr Griffin attended on Dr Tym, psychiatrist. Dr Tym prescribed medication that made Mr Griffin feel as if his mind was in a “state of stupor”. Small and trivial situations sent him into a raging temper. During one such rage he left the matrimonial home and lived on his yacht. Dr Tym told him he was cured. After having been on medication for only two months, Dr Tym reduced his medication over two weeks. This resulted in Mr Griffin going “cold-turkey”.
Mr Griffin’s evidence at the arbitration (T29.4-18) was that he was given three options: first, have a simulator licence renewal, which he’d fail; second, resign and take his superannuation; or third, be given 30 days notice and he would only get his contributions to his superannuation. He resigned on 16 May 1982. He then put ads in the paper “for a good job as a pilot” (arbitration hearing T31.53) but got no offers. In cross-examination, he said that “they asked for my certificate of leaving Qantas, after they asked why, that was that” (arbitration hearing T50.7). He did not look for work in any other capacity because he “had the problem which I’m getting now that I find I can’t look at people” (arbitration hearing T50.50). He agreed he did not seek medical treatment at that time (the early 1980s), apart from Dr Wienholt.
About the same time a business (Mauritius Import Export Services) Mr Griffin had been running, importing rubber facemasks for sale at shows, wound down because of his aggressiveness (arbitration hearing T31.55). In cross-examination, he said that September 1982 was his last show as his business collapsed because he lost spaces at the shows (arbitration hearing T43.49-53, T44.53). In cross-examination he said that the business finished in 1983 (arbitration hearing T51.54), though it was never clarified whether it finished in the second half of 1982 (that is, in the 1983 financial year) or in the 1983 calendar year. After leaving Qantas, he worked in his importing business for about 20 hours per week (appeal hearing T99.3).
In a statement attached to his wage schedule, Mr Griffin stated that from the time he left Qantas until he left for England in about 1987 he “never earned any income” but used his Qantas payout to do extensions to his house and to prepare his yacht to take it to Perth for charter during the America’s Cup races. Prior to the onset of his illness, Mr Griffin said he had been successful in business but his “mental attitude deteriorated so much” that he lost all his franchises, which were for the sale of small sweets and the carnival rubber facemasks. After his divorce settlement in 1985, he gave half his house to his ex-wife. In about 1986, Mr Griffin had no income, as he was working on his yacht (arbitration hearing T33.47). He had used his yacht as security for a commercial bill. The yacht was auctioned in 1986 or 1987 for $80,000.00 with $60,000.00 going to the finance company and $20,000.00 to the receivers.
In 1982, Mr Griffin borrowed money to rewrite the book The Life Story of Santa Claus (arbitration hearing T48.3), which failed (appeal hearing T99.9).
Mr Griffin built a “maze” in 1983 to be used at events such as the Melbourne Show and at a butterfly farm at Windsor where it was washed down the river in a flood (arbitration hearing T32.28).
Because he could not get work in Australia and he was “penniless” (appeal hearing T99.10), Mr Griffin moved to the United Kingdom in about 1987 where he tried several employment agencies but was turned down after he showed his Qantas Certificate of Service, which gave “Ill Health” as the “Reason for Termination”. When he gave details of his illness he was told “Don’t ring us, we’ll ring you”. He studied for a commercial pilot’s licence in the United Kingdom, but failed the theory examination (arbitration hearing T32.42, T38.13). He developed a compulsion to jump in front of a train and “that made it hard to be stable enough to get a job”. In cross-examination, he added that he had trouble in London, as he could not use the underground because of claustrophobia and the fear of jumping in front of a train (arbitration hearing T53.15-20). His girlfriend supported him because he was ineligible for any social security benefits. He “wasn’t coping” and they moved to New Zealand (arbitration hearing T32.45).
He travelled through Europe with his girlfriend for an undefined period. He could not recall looking for work but added that he did not think he was well enough (arbitration hearing T53.13).
In about 1989, Mr Griffin moved to New Zealand with his girlfriend. In Queenstown, he took over the lease of a run-down hotel (the evidence attached to the wage schedule suggests that his girlfriend was the principal in this business and this is confirmed in Mr Griffin’s evidence at T34.47 of the arbitration hearing), but found that he started to “get worse mentally” (arbitration hearing T34.48) and that he could not talk to customers. He said that things “got worse and worse” and that he “was getting other compulsions coming up” (arbitration hearing T34.51). One such compulsion was to jump off a chairlift while skiing. His general practitioner prescribed anti-depressant medication, which was unsuccessful. He changed doctors and was prescribed different medication, which was also unsuccessful. He was then admitted to Ashburn Hall Psychiatric Hospital on 5 June 1991 where he was prescribed Prozac without improvement (arbitration hearing T36.28). His girlfriend sold the lease to the motel for a small profit.
While in New Zealand, Mr Griffin got a pilot’s licence and did voluntary work fish spotting for trawlers with the local aero club flying a Cessna 150. He said he “lasted about two trips” but then couldn’t face it and they did not renew his licence (arbitration hearing T54.18-25).
In August 1991, Mr Griffin returned to England with his girlfriend. He tried to start a small woodworking business but his fear of machine tools made it too frightening for him. He described himself at that stage as “fairly suicidal and very mentally disturbed” (arbitration hearing T35.50). He did not know why he got worse but he could not be left with his daughter (arbitration hearing T35.58-36.1). He was treated as an outpatient at St Clement’s Psychiatric Hospital and improved when he was prescribed Anafranil (an anti-depressant also known as Clomipramine) (arbitration hearing T36.10-21). He agreed that he told the staff at St Clement’s that his problems first started with a compulsion to drive his car off the road into a sugarcane field (arbitration hearing T56.35). At some stage he got a job in England delivering sandwiches but left after two weeks as his compulsion to crash while driving returned and he resigned (arbitration hearing T37.39). He also worked at an artificial ski slope but was asked to leave after he pointed out that the place was unsafe and put red tape on protruding metal (arbitration hearing T37.44-52).
He hoped he would be able to fly again, but not in a 747 or a 707 “because the thrust levers would be there” and he hoped his compulsion would not happen if he got on a different plane (arbitration hearing T38.5).
In May 1994, Mr Griffin returned to Australia and lived at Glossodia near Windsor on a property owned 90 per cent by his partner. Mr Griffin’s contribution to the property came from an inheritance from his parents (arbitration hearing T37.13). He helped to build the house at Glossodia (arbitration hearing T57.1). He came under the care of Dr Kathryn Fluker for depression, obsessive compulsive disorder and suicidal thoughts.
In 1999, Mr Griffin tried to start a business building children’s rocking horses, but found that he had a compulsion to put his fingers into the routers and saws so he stopped all work with power tools (arbitration hearing T39.1-7). He did not look for work anywhere else (arbitration hearing T57.21).
At some stage Mr Griffin moved to Queensland, where he currently lives.
His only financial records are Tax Assessment Notices for 1997 and 1998, which disclose taxable income of $1,857.00 and $4,757.00 respectively. Mr Griffin said at the arbitration that he earned nothing, though he did not identify the period to which he was referring (arbitration hearing T14.21-27). He believes that all records for Mauritius Import Export Services were destroyed after he left Australia (arbitration hearing T45.10) and he had no recollection of what he earned in that period (arbitration hearing T45.23).
Medical evidence
Dr Badham reported on 4 January 1974 that there was no evidence of Mr Griffin having suffered a fracture or any other osseous injury to the skull in the 1973 hammer incident.
Dr Allsop, a physician at Royal Prince Alfred Hospital, reported to Dr Howell, the Deputy Director of Medical Services with Qantas, on 8 January 1974 that Mr Griffin had complained of headaches and some feelings of depression since November 1973 when he was struck on the head by a hammer. He was struck in the region of the left eyebrow and required three stitches. His headaches commenced about two weeks later when the stitches were removed. X-rays and an EEG were normal. A brain scan on 14 January 1974 was also normal. Dr Allsop reported to Dr Howell on 21 January 1974 that he did not think Mr Griffin had any organic disease and that “he may now go ahead and recover satisfactorily”.
Dr Thompson, medical officer with Qantas, saw Mr Griffin on 31 August 1979 and wrote to Dr Degotardi, psychiatrist, on that day. He recorded that he saw Mr Griffin directly after he had completed an overseas trip during which he “felt so tense” that he reported to the captain that he could not carry on and he retired to the “crew rest”. Mr Griffin reported that he felt like screaming and crying and was especially concerned about the feeling that he wanted to stop all engines. He said he felt his hand reaching out for the cut-off levers. When in the “crew rest” he did not improve and he felt he was “heading for a nervous breakdown”. Dr Thompson outlined the history of the 1973 head injury and that, though all investigations were normal, Mr Griffin was lethargic and had headaches and difficulty with concentration following that injury. He added that Qantas was most concerned with Mr Griffin’s emotional health and stability.
Dr Degotardi saw Mr Griffin on 4 September 1979 and reported to Dr Thompson on 5 September 1979. He took a history that Mr Griffin’s first sign of problems occurred about five years earlier when he was accidentally struck on the head by a hammer. The blow caused severe headaches. In the course of a brain scan he experienced panicky feelings with palpitations, cold sweats and extreme agitation. Ever since that experience he has had panic attacks in dental chairs and, more recently, in barbers’ chairs.
In respect of the incident in August 1979, Dr Degotardi recorded:
“Last week he was under check for renewal of his licence on the 747. He has successfully flown from Singapore to Perth to Singapore which he managed quite well. After this, on flying to Sydney he was going through emergency procedures in his mind when he suddenly experienced an urge to pull back the cut-off levers and became quite panicky that he may actually do this. He was so distraught that he had to leave the flight deck to the Staff rest area. This incident was reported back in Sydney and the reason for his assessment by yourself and now in turn his consultation with me.”
Dr Degotardi concluded that Mr Griffin had a “neurotic phobic anxiety reaction” that had been present in an acute form for five years and became markedly worse for the past four or five days. Without treatment, he felt that the disorder would continue and that Mr Griffin would experience further panic attacks similar to the one that he had on the flight a few days earlier. The doctor discussed alternative methods of treatment including anxiety controlling drugs and psychotherapy. He concluded that behaviour therapy with appropriately aligned deconditioning may be effective, but that was “uncertain with strong probabilities of re-emergence of symptoms even when originally successful”.
Dr Thompson referred Mr Griffin to Dr Warren White, psychiatrist, for a further assessment. Dr White saw Mr Griffin on 9 September 1979. In his opinion there was no doubt that Mr Griffin presented a case of “phobic anxiety state”, a fairly common neurosis.
Dr White also took a history of the 1973 incident when a hammer struck Mr Griffin on the head and he had a panic attack whilst undergoing a brain scan. Since that incident he developed a considerable fear about attending the dentist and the barber.
In respect of the incident on 29 August 1979, Dr White recorded that Mr Griffin was aware that a check captain was able to ask any question about emergency procedures that would help him ascertain the pilot’s standard. On the flight from Perth to Singapore, Mr Griffin began to go through the emergency checks in his mind. When he went through the check for “4 generators out” he began to be frightened that he might in fact carry out the procedure of switching the “start lever” to “cut off”. He said that the force of his arm moving against the seat belt towards the thrust levers was so much that it made his arm sore. A similar situation occurred on 30 August 1979 when flying from Singapore to Sydney.
Dr White discussed the nature of phobic anxiety states and the three methods of treatment. He added that:
“The prognosis for this illness which is not always understood varies. Sometimes phobic anxiety states are a response to current stress and this man has had some stress related to his boat and his marriage and to his fears related to licence renewal. It is not possible to say whether this condition would abate spontaneously.”
Dr White felt Mr Griffin needed treatment, though he was not likely to act out his “fear fantasy”. The doctor added:
“The acting out of the feared action is usually not a matter for concern and I would not say at this stage that he is completely ruled out from the point of view of mental fitness in relation to section 47 of the air navigation orders which state that if a pilot has a neurosis which would render him unsafe within two years of the examination he be considered unfit.
In summary we see a 40 year old pilot with some lifelong features of phobia, a head injury more than five years ago with developments of panic feelings during a brain scan and episodes of fear aboard an aircraft. This occurred in a man with a fairly compulsive personality in which he is unable ever to relax and a man with an unhappy home life.”
Dr Howell certified Mr Griffin unfit because of “phobic anxiety” from 10 September 1979 until 30 September 1979. A different medical officer from Qantas declared Mr Griffin unfit from 1 October 1979 until 26 October 1979 for “personal illness”.
Dr Thompson referred Mr Griffin to Dr Williams, psychiatrist at The Northside Clinic, for examination on 8 October 1979. Dr Williams prepared a report on 11 October 1979. Having already been provided with the histories take by Drs Degotardi and White, Dr Williams did not repeat the history, but investigated Mr Griffin’s treatability using some simple behavioural techniques. Dr Williams observed that Mr Griffin’s problem was “not a phobic one but an obsessional one”. Mr Griffin’s phobias did not relate to flying and in Dr Williams’ opinion were not relevant to the question of re-licensing.
Dr Williams recorded the following additional history. Some two years before his assessment (1977), in a setting of stress when he was in Mauritius, Mr Griffin was “seized with the obsessional thought of inappropriately turning the steering wheel of his car hard to the left, with potentially disastrous results”. The next occasion when he was troubled by an obsessional thought was when he was flying a 747 on 29 August 1979. The same thought and emotional reaction to it recurred on the return flight.
Dr Williams observed that obsessional thoughts are not at all uncommon in otherwise reasonably normal people from time to time. He gave the example of people having thoughts of throwing themselves to the ground when looking down from a tall building or precipice. Such thoughts could not be regarded as abnormal unless they were persistently recurring and disruptive to the individual. When the individual was neither psychotic nor brain damaged, the doctor considered that “one can be very sure indeed that they will not act upon these thoughts, even though they may be very fearful of doing so.”
Dr Williams could not guarantee that Mr Griffin would not develop similar or different obsessional thoughts under stress in the future. He thought Mr Griffin would almost certainly do so if he was “stressed enough”, but now that he had an understanding of what they were about the doctor considered that his emotional reaction to them would be much less or insignificant.
Dr Williams discussed the problem with two of his colleagues. One of those, Dr Ellard, was confidently of the view that Mr Griffin’s history of obsessional thoughts developing under stress was not a contra-indication to him flying. He added that most successful pilots were obsessional personalities and they frequently had obsessional thoughts but rarely brought them to the attention of anybody because of the possible implications of such revelations.
Dr Williams suggested a referral to Dr Ellard and also taught Mr Griffin some “thought stopping” as a way of combating obsessional thoughts should they recur. He concluded by saying that there was no reason from a psychological view why Mr Griffin should not continue his career as an aviator and his known psychological disabilities were not a reason for him to be grounded.
Dr Ellard reported to Dr Thompson on 22 October 1979, having seen Mr Griffin on 19 October 1979. In Dr Ellard’s opinion, many senior multi-engine pilots are “rather obsessional people”. On balance, that was probably a good thing because some aspects of flying require meticulous attention to detail. As a result, he felt that one should not be surprised if from time to time they show the manifestations of the obsessional personality when under stress. He noted that it was quite common for those who have a phobia about heights to have the fear of voluntarily jumping off the edge of a cliff (when standing on one) and many people standing on railway stations have a sudden urge to jump in front of a train as it comes in. He considered that Mr Griffin’s obsessional thoughts were in this category and “not very far removed from normality”. Dr Ellard also mentioned that quite a number of women who have babies have obsessional thoughts about throwing their babies out the window. He considered it was “extremely unlikely” that Mr Griffin would ever perform any of the acts that preoccupied him and he had no hesitation in certifying him as fit for all flying duties. He was happy to fly with him.
Dr Thompson reported to Dr Lane, the Director of Aviation Medicine, Department of Transport, on 25 October 1979 outlining that he saw Mr Griffin on 31 August 1979 about his thoughts of wanting to close the thrust levers during the flight on 29 August 1979. Dr Thompson noted that Mr Griffin had been subject to some recent stress, financial and domestic. Dr Thompson referred briefly to Mr Griffin’s career with Qantas and to the 1973 incident when he was struck on the head by a hammer. He added that since August Mr Griffin had been very well, although not at work. There had been some relief from his financial problems and he was anxious to return to his normal duties. Dr Thompson attached a report from Dr Ellard dated 22 October 1979 and referred to a telephone conversation with Dr Ellard who emphasised his conviction that there was no contra-indication to an early return to duty. After discussions with Dr Lane, Dr Thompson gave Mr Griffin a pass assessment at the licence examination held on 25 October 1979.
Dr Williams reported again on 1 November 1979. He had seen Mr Griffin for two therapeutic sessions and set up a simple behaviour modification programme (presumably twanging a rubber band on his wrist). He did not intend to see Mr Griffin again until there was “some hitch in the execution of his programme”.
A Qantas medical officer declared Mr Griffin fit for unrestricted duties from 7 November 1979.
Dr Thompson prepared a further short report on 29 April 1980, presumably at the request of Mr Griffin, in which he stated:
“Following a combination of stressful events (financial and domestic uncertainties plus promotional or 747B type training) you consulted me and I felt that your agitation was a temporary and understandable reaction to those environmental factors. This was confirmed by specialist examination and appropriate treatment produced relief.
You were cleared back to full duty as an established First Officer on 6.11.79, and you have since operated satisfactorily in that role. There is no reason to anticipate future problems of [a] similar nature and your professional licence was recently renewed without question (The D.O.T. had approved your return to duty after your spell of sick leave).”
In the early 1980s, Dr Wienholt, Mr Griffin’s general practitioner at Engadine, wrote several scripts for Mr Griffin for Serepax to treat his continuing anxiety (see Dr Wienholt’s report of 16 February 2001).
On 20 July 1980, Mr Griffin was the first officer on a flight from Singapore to Bahrain under Captain Gillies. He told Captain Gillies that he was suffering from a mental condition that led to a compulsive urge to close the thrust levers and that the condition was worse on long night sectors or when he was under stress. He cautioned Captain Gillies not to stress him. Captain Gillies directed the second officer to assume the first officer’s duties and contacted a company medical officer (presumably Dr Thompson or Dr Howell) who joined two other parties to the conversation, one of whom was the Chief Pilot Line Operations (Captain Gillies memorandum 7 October 1980).
Included in the evidence is a file note dated July 1980 (apparently from Dr Thompson) referring to Captain Gillies’ telephone call. Captain Gillies was reassured and told of Dr Ellard’s advice. The file note records, among other things:
“1. Is he just talking too much as [is] his want?
2. “ “ genuinely having a recurrence?
3. “ “ still angling for his L.O.L on med grounds?
He doesn’t seem the best material for continuing flying.”
Captain Gillies stated that Mr Griffin’s performance on the flight from Bahrain was “far below the expected standard”. He constantly missed radio and altitude calls and incorrectly loaded “INSs”. As the aircraft got deeper into Europe, it became increasingly obvious that Mr Griffin was getting “behind the aircraft” and it seemed difficult to get any points through to him. At Bahrain southbound, Mr Griffin knowingly ignored a specific operational instruction with respect to the required fuel load. Mr Griffin had improved to be an operationally acceptable first officer by the time the crew returned to Sydney.
Dr Thompson again wrote to the Director of Aviation Medicine, Department of Transport, on 17 September 1980 stating that since Mr Griffin’s return to duty in November 1979 he “operated on a normal pattern without difficulty”. Mr Griffin kept in touch with Dr Thompson regularly and he appeared to be gaining confidence with experience, although he did not appear to be either an outstanding, or even a dedicated and enthusiastic pilot. He had flown with senior captains and had been carefully scrutinised by them in view of his medical history. Dr Thompson then added that:
“Above all, there has been no recurrence of the disturbance which caused his removal from duty in August 1979.
The incident we discussed on September 16 concerned a hostile reaction from a captain [Captain Gillies] on the flight deck (SIN/BAH 19 July) when Griffin unwisely chose to discuss his medical history. Griffin was removed from duty precipitously and in my opinion quite unreasonably. After a long phone talk with the Captain (in Bahrain) tied in with myself and 2 senior pilots in Sydney, the crew re-united and completed the trip to Europe and back to Sydney with Griffin performing normal co-pilot duties.”
The incident with Captain Gillies was referred to in what appears to be a file note prepared by Dr Howell on 22 September 1980. Dr Howell noted that the captain involved was “reassured by telephone that the first officer was fully fit to continue”, which he did.
On 7 December 1981, Dr Goldfinch, another Qantas medical officer, wrote to Dr Tym outlining Mr Griffin’s history. Dr Goldfinch recorded that Mr Griffin said that his compulsion had “persisted on long night flights, although improving over the past year.” He did not suffer on short stages. After an “unpleasant flight” from Los Angeles to Honolulu a few days earlier, Mr Griffin “went sick” and returned to Sydney as a passenger. Dr Goldfinch then added:
“He advises that he took this action primarily because he has a bid period pending which involves long night sectors, and he would have been flying with the same Captain with whom his problem originally developed. He says ‘he will ask me how I am, and I cannot look him in the eye and say I’m alright’.”
Dr Goldfinch had been told that some captains would not leave the flight deck for their normal crew rest when operating with Mr Griffin.
Dr Goldfinch added:
“My view is contrary to those expressed by the Doctors two years ago. Obviously the persistence of the symptom, and his ‘going sick’ in Honolulu, have helped me to reach this decision. A re-reading of the relevant ANO reinforces any view, and I enclose a copy for your information. I believe that Bryan no longer meets the mental fitness standard.
He has suggested that a period of absence would enable him to seek further treatment. However he has undergone treatment by Warwick Williams, and to me the compulsion appears well established. I am anxious not to defer assessment until the ‘trail has become cold’ nor do I wish him to suffer prolonged uncertainty regarding his future.”
Dr Tym reported on 11 December 1981 that Mr Griffin’s illness, which was best described as “Traumatic Affective Illness (not a neurotic state or neurosis)” (emphasis included in the original), dated back to and was engendered by a head injury he received in 1973. He noted that between the clearing of the headaches and the onset of the obsessive compulsive symptoms in 1978, “the only manifestations were a higher than normal anxiousness, abnormal irritability at home and uncharacteristic and abnormal specific phobias about his head being held in dental chairs.”
After referring to Mr Griffin’s many phobias since 1978, Dr Tym added:
“The exacerbation of the illness was brought about then by extra psychological stress secondary to change in aircraft. (Since he never had an illness limited to one specific phobia, behaviour therapy was never indicated – as fast as one specific phobia was eliminated by thought-stopping another would pop up somewhere else).” (emphasis included in original)
Dr Tym considered that the illness was “totally and permanently curable” by an adequate dose of tricyclic drugs. He felt that in two month’s time Mr Griffin would be 100 percent fit physically and mentally and off all medication. There was no reason to suppose that the illness would recur.
Dr Tym reviewed Mr Griffin on 11 February 1982 when he found him to be normal. He was still on medication but was to reduce it to zero over four weeks. He thought Mr Griffin “should be fit for full, normal duties by mid March 1982.” Dr Tym added:
“As he has recovered he has experienced a return of his normal memory, concentration and self confidence etc. that has been absent since 1973. He no longer has any compulsive thoughts and there is no reason to suppose they will appear in the environment in what [sic] they appeared previously.
The illness for [sic, from] which he has now recovered was not a psychotic illness as far as can be ascertained the illness was a mild abnormality in neurotransmitter chemical kinetics produced by the freak psychological response to the psychological ‘shock’ of the head injury in 1973.
He is free from any neurological or psychological abnormality and the illness will not recur spontaneously.” (emphasis included in original)
On 2 March 1982 Dr Howell took a telephone call from Mr Griffin and recorded the following diary note:
“First Officer Griffin telephoned at 1415 on 2nd March, 1982 and held practically a one-way conversation with me for some 30 minutes.
He was extremely verbose, claimed to be off all drugs but on closer questioning, indicated that he had been taking 8 tablets of Tryptanol together with Parnate per day – now reduced to 1 or 2.
He was having great difficulty in sleeping with the reduction in his medication.
He explained at great length the reason for him wishing to pull the throttle levers back on the aircraft.
He indicated that he had left the domestic domicile and was living with his dog aboard his yacht. He has one aim in life and that is to become a Qantas Captain.
He discussed at some length the problems of his wife and various friends.
I intend to write to Dr Tym today. From the conversation I held I could not consider Griffin normal.”
Dr Howell wrote to Dr Tym on 3 March 1982 and referred to the telephone conversation he had with Mr Griffin the day before. He said, “Griffin is not at present the same individual that I knew several years ago.” In his present state, Dr Howell could not and would not allow Mr Griffin to resume flying company aircraft.
Dr Tym responded to Dr Howell in a letter dated 8 March 1982 that Mr Griffin’s medication was being reduced and was expected to reach zero by mid March 1982. He stated that as far as he could ascertain all the abnormal mental phenomena that persisted since 1973 had cleared and “amongst other normal aspects of his disposition his former self confidence has returned.” Dr Tym considered Mr Griffin to be an unusual case in that he was able to hold his job reasonably satisfactorily from 1973 to 1978, despite his illness. However, he was not able to do so when called upon to retrain from, he thought, 707s to 747s. Dr Tym explained Mr Griffin’s conduct as follows:
“Because he has coped with life in one, unsatisfactory, way since 1973 (not knowing what was the matter with him and not responding to treatment despite his cooperation) and now finds himself cured of the many subtle and less subtle defects in his disposition and is, amongst other things, imbibed with fresh self confidence but still the object of suspicion, I am not be [sic] surprised at some over-reaction on his part.”
Dr Tym anticipated difficulty in convincing others of Mr Griffin’s return to his now “normal” self and he agreed with Mr Griffin’s suggestion that he should apply for one year’s leave of absence. When Dr Tym last saw Mr Griffin he found him to be free of the previous abnormal mental phenomena that were the basis of his diagnosis and treatment. Whether Mr Griffin was fit for his work was not within Dr Tym’s “province to pronounce upon.” Nevertheless, he could find nothing wrong with him whereas there had been plenty of things wrong ever since the head injury in 1973.
Dr Goldfinch reported to Dr Lane on 3 May 1982 that Mr Griffin required further treatment for obsessive compulsive symptoms and that “Subsequent behaviour therapy by Dr Williams was not successful”. Copies of Dr Tym’s reports were enclosed and it was noted that Mr Griffin had not yet received company clearance.
On 7 May 1982, Dr Lane wrote to Dr Warren White forwarding Mr Griffin’s file and seeking advice. Dr White replied on 10 May 1982. He noted his earlier examination and opinion given in 1979 and added:
“It would seem that Griffin has not been well over the last three years, being plagued by further obsessive thoughts and fears that he might act out his fear that he would cut the throttles.
It would also seem that there was considerable reluctance by Qantas flight crew to fly with him.”
Dr White set out his summary of Dr Tym’s “chain”:
“Head injury 1973
¯
psychological shock
¯
freak psychological response
¯
mild abnormality in neurotransmitter
chemical kinetics
¯
post concussional syndrome
¯
obsessive compulsive symptoms
¯
Traumatic affective Illness
¯
Tricyclic antidepressants
¯
100% Cure”
Dr White was not as confident as Dr Tym about the “cause, management, and prognosis.” Whilst he did not believe Mr Griffin was out of the woods yet, should the matter of his commercial licence and medical standard be raised, he would “not be sufficiently pessimistic about his condition to find that it was likely that within two years of the examination he would be unable to safely exercise the privileges of his licence.” Dr White added a “PS” whether it might be advisable for Dr Lane to obtain copies of his (Dr White’s) and Dr Degotardi’s reports.
Dr Lane wrote to Dr Goldfinch on 7 June 1982 advising that he did not have copies of the reports from Drs White and Degotardi and requesting that copies be provided. Dr Goldfinch replied on 21 June 1982 expressing surprise that Dr Lane did not already hold copies of the reports and enclosing copies.
On 3 September 1982, Dr Lane wrote to Professor Ball, psychiatrist at the Department of Psychiatry at St Vincent’s Hospital in Melbourne, setting out the history and providing copies of relevant documents. Dr Lane stated that:
“We have been led to believe that Griffin had got over his obsessive thoughts of the 1980/81 period, but it later turned out that this was not so, and in 1981 he consulted Dr Robert Tym who held that the problem was ‘post-concussional syndrome’ and it had been cured by an adequate dose of a tricyclic drug. Causation was thought to be due to an accidental blow on the head with a hammer in 1973…”
Professor Ball reported to Dr Lane on 21 September 1982, having seen Mr Griffin on 20 September 1982. He took a history that Mr Griffin was well until 1973 when he was struck on the head by a hammer and concussed. He was put off work for three months at that time and was extensively investigated. He became very anxious at the time of his brain scan. Professor Ball then recorded:
“He claims that thereafter and especially over the last five or six years he had a variety of related troubles namely that he did not go to the dentist at all because he was frightened of being immobilised with things in his mouth and also he had trouble about going to the barber shop with keeping still in the chair and things tightly around his neck. His trouble in reference to the flying situation began about three to four years ago when as you know he developed a series of impulses to behave in a cockpit in ways which could have been quite worrying although in fact he never actually did this. However associated with these he became increasingly anxious and admits that he began to make a number of mistakes feeding information into navigation computers etc. which he managed to correct but he became increasingly worried about that. He also claims that he became so anxious that he was taking Serepax and indicated that he might have been taking Serepax rather unwisely on occasion although he said that he would never formally admit that in an official way. As you know he told a number of people about this and this led eventually to him being grounded. He admits to shaking in the bus on the way to flying, he became terrified that he would do something.”
Since being treated by Dr Tym, Mr Griffin claimed to have been quite well and had no trouble with the dentist or going to the hairdresser. Professor Ball also recorded that, at about the time Mr Griffin first developed his flying problems, he also had an impulse to pull the wheel of his car with his left hand and thus turn to the left. That made him extremely anxious and he had to forcibly restrain himself from doing so.
At the time he attended on Professor Ball, Mr Griffin claimed to be quite well with all symptoms in abeyance, though he had not been flying. Mr Griffin’s general health was described as being good and there was no history of excessive consumption of alcohol. In parallel with Mr Griffin’s troubles there had been a steady deterioration in his marriage. For a period he lived on his boat.
Professor Ball recorded that there was nothing untoward in Mr Griffin’s family background or his early developmental history. There was no psychiatric history in his family.
Professor Ball also recorded that Mr Griffin was running a “very rewarding business making rubber face masks which he sells around the country particularly at the Sydney and Melbourne Show.” Mr Griffin has always been regarded as a “go getter with a multiplicity of interests” and he has always worked hard. His general personality could be regarded as having a number of “obsessional but not in general incapacitating traits.”
The concluding paragraphs on page three of the Professor’s report are difficult to read because of the poor quality of the photocopy in evidence. However, doing the best I can they appear to read as follows:
“He presented himself well, he was appropriately dressed, he looked his stated age and gave a good account of himself with normal verbal facility. I found nothing indicative of functional or organic psychosis. At the time that I saw him I found nothing indicative of neurotic disorder in any formal sense. At present his disorder seems to be in remission. I hesitate to use the word cured because the diagnosis which I would give to his overall presentation was obsessive compulsive disorder with some phobic features. This disorder on the one hand is notoriously difficult to treat and also periodically may have remission. At the same time it is also known that it often burns itself out in early middle age, these factors must be considered in relation to claims for successive treatment. However in addition the kind of treatment which he has already been given, I refer to the anti-depressant medication, [which] are also known to be helpful in this sort of disorder. Whatever the relevance of the explanation offered by Dr Tim [sic] may be to the problem, the treatment has been effective, or appears to have been so. If this man remains well I see no reason why he should not have his licence continued.
So far as 3.3 Mental Fitness is concerned, there was no history whatsoever of a psychotic breakdown. I do not think he can be regarded as having a personality disorder severe enough to have repeatedly resulted in overt acts. I think that he must be considered to have had a neurosis but it in itself would not have led him to do the acts which he feared in the air. It was essentially incapacitating because of the anxiety associated with it. In my view, should it recur, it would again be associated with anxiety of a similar order and it could lead to him being unable to function as he did with Qantas. Whether or not be [sic, he] is still field dependant to the extent that the disorder will only recur in the setting of 747’s and not other aircraft would remain to be seen. You may consider that the Department might wish to test him in an actual flying situation or in a simulator and this would seem quite reasonable to me. If it recurred in the flying or simulated circumstances then I think he should probably have further treatment to deal with the problem.”
Dr Tym wrote to the Department of Aviation on 20 April 1983 as a result of an examination he conducted in Sydney on 14 April 1983. Dr Tym’s psychiatric examination revealed no evidence of Mr Griffin’s previous specific, abnormal post-traumatic mental state. There was no evidence to suggest the existence of any form of neurotic state or neurosis. Mr Griffin’s insight was that he was once again his “normal” self and was no longer plagued by abnormal fears, bouts of depression, irritability, lapses of concentration, difficulties with memorising, loss of self confidence, headaches, alcohol intolerance, or insomnia as he was for the eight years between mid 1973 and January 1982. Dr Tym concluded that Mr Griffin was normal in every regard. He did not consider that the abnormal post-traumatic mental state from which he suffered previously would recur spontaneously.
On 10 May 1983, Dr Gordon, writing on behalf of the Director of Aviation Medicine at the Department of Aviation, wrote to Mr Griffin and issued a pass medical assessment. Until further notice, Mr Griffin was required to provide a brief psychiatric report with each renewal medical examination.
On 25 May 1983, Dr Tym wrote to Dr Gordon stating that there was no reason whatsoever to suppose that Mr Griffin’s illness would recur. In his opinion, the necessity for six-monthly psychiatric reports could safely be removed. He considered that Mr Griffin’s illness had an abrupt onset and an almost equally abrupt and predictable termination in response to specific treatment. Dr Tym repeated his view in a further report to Dr Gordon on 25 August 1983. This report referred to Mr Griffin having cut an extensor tendon with a can opener in the midst of considerable marital strife. However, his consequent distress did not amount to a recurrence of his illness. Dr Tym again stated that there was no reason to suppose that Mr Griffin would not remain fit to fly from a psychiatric viewpoint.
On 3 November 1983, Mr Griffin was admitted for one day to The Sydney Clinic under the care of Dr Tym (see letter from The Sydney Clinic of 22 January 2009).
On 31 May 1991 Dr Hillock, general practitioner at Queenstown, New Zealand, referred Mr Griffin to Dr Adams, psychiatrist at Ashburn Hall, a private psychiatric hospital in Dunedin. Dr Hillock recorded the following history:
“As I mentioned he is an ex-airline pilot who had to give up his position because of his anxieties and phobias. Since being in Queenstown over the last couple of years he has had increasing problems which have been both mixed anxiety and depression. Although it appears that most of his problems have been related to himself, there was a phase when he and his partner Jenny were looking at their relationship, but I believe this to be very strong.”
Dr Hillock added that Mr Griffin was much more realistic in terms of his expectations and worries and he was not having any major panic attacks, as previously. He had sold his motel and was planning on moving to England in the near future.
The nursing notes from Ashburn Hall for June 1991 reveal that Mr Griffin found owning motel units in Queenstown to be “very stressful”. It was also noted that he suffered from “obsessional thoughts” for several years, which began when he was a pilot with Qantas. He also suffered from panic attacks and had a terrible short-term memory due to a blow on the head some years ago. The entry for 14 June 1991 referred to Mr Griffin wanting to leave hospital to return to the motels to deal with their potential sale. He also wanted to go skiing. The hospital refused him permission to leave, noting that he was easily pulled into business and lost track of himself.
Dr McKergow, consultant psychiatrist at Ashburn Hall, prepared an undated report addressed “To Whom it May Concern” dealing with Mr Griffin’s admission to Ashburn Hall between 5 June and 31 July 1991. Dr McKergow recorded:
“Bryan has suffered a variety of obsessive compulsive disordered symptomatology over the past eight years. This required him to take a medical retirement from his occupation as a 747 Co-Pilot for Qantas Airlines. His symptoms had been somewhat controlled on Prothiaden 150mgs nocte but he came to Ashburn Hall in the hope that we could further improve his symptomatology.”
Dr McKergow noted that Mr Griffin came from a markedly disrupted background with considerable deprivation and had at no time any sense of “belonging”. His parents’ marriage spilt when he was at an early age and he subsequently moved between his mother and stepfather, and his father and stepmother. Mr Griffin made significant gains during his stay at the hospital and showed an ability to gain psychological insight and work in an interpretive mode.
A short report from Dr McKergow dated 10 July 1991 confirmed that Mr Griffin was referred for treatment of his obsessive compulsive disorder which was complicated by depression. He was stated to be unfit to carry out his normal occupation as a hotel manager and it was anticipated that he would require hospitalisation for several weeks to come.
Mr Griffin came under the care of a general practitioner at Suffolk in England in August 1991. On referral from Dr Reed, general practitioner at the Haven Health Centre, Mr Griffin attended at St Clement’s Hospital on 2 September 1991. At that time, he was having obsessive/compulsive thoughts that he would harm himself or his two-year-old child. Intrusive thoughts were becoming worse and he was getting panic attacks.
Dr Griffin came under the care of Dr Jones at St Clement’s Hospital in England in September 1991. In a report prepared on 4 September 1991 (wrongly dated 1990), Dr Jones referred Mr Griffin to a Dr Kotby. The referral letter recorded that Mr Griffin had a “ten year history of obsessive thought disorder, which has resulted in his losing his job as a pilot with Qantas, and has been particularly bad for the past 10 months, with thoughts of hurting himself and his 2 ½ year old child, although he has never acted on any of his obsessions.” It was also noted that Mr Griffin complained of anxiety attacks and some symptoms of depression.
Dr Kotby, a doctor at St Clement’s Hospital, wrote on 9 January 1992 that Mr Griffin was continuing to receive treatment at the hospital for his depression complicated by obsessional thoughts and that he would remain unfit for any kind of work for the foreseeable future.
Dr Datan wrote to Dr Reed on 25 June 1992 advising that Mr Griffin’s holiday in Europe went well. His claustrophobia and obsession to jump off lifts and conduits faded in Austria when he actually went to try the lifts. Due to techniques taught to him by another doctor, Mr Griffin was able to control his thoughts and he did not think about suicide any longer. His main problem was that he felt strange with his three-year-old daughter, but he was able to manage to look after her for three hours, despite the fact she had been crying at times. He remained on medication. His appetite was good, his mood was much better, but his energy was not back to normal and his concentration was still a little impaired. Over the previous few weeks, he had felt more active and had started making rocking horses and started to swim again. As things were going so well, Dr Datan discharged him from the clinic back into Dr Reed’s care. Significantly, Dr Datan recorded that Mr Griffin had started dreaming a lot that he would have to go on a check flight, but he never gets into the plane.
Mr Griffin came under the care of Dr Kathryn Fluker, general practitioner, at the Glossodia Family Practice in January 1995. Dr Fluker provided a report on 9 July 2003. When she took over his care he was already on medication. In the six years he attended at that practice he had episodes of worsening obsessive compulsive disorder and flare ups of his depression, which appeared to be triggered by external factors such as the Egypt Air crash, or seeing his ex-wife, or marital disharmony. In that six year period he only stopped his medication once and on doing so became unwell. Based on Mr Griffin’s history, Dr Fluker considered that his obsessive compulsive disorder and depression were directly related to his work as a pilot with Qantas. She therefore felt that his employment with Qantas was a substantial contributing factor to his “injuries” (mental state). She did not feel Mr Griffin would ever make a full recovery mentally. He was likely to continue to need medication to control his obsessive compulsive disorder and depression for the rest of his life.
Mr Griffin suffered a major panic episode in November 1999 (the time of a further air disaster – the Egypt Air crash) and he increased his medication. At that time he wrote to Qantas stating that he had been mistreated by the airline.
On 25 July 2000, Dr Hadfield, general practitioner at Windsor in New South Wales, provided Mr Griffin with a Centrelink certificate declaring him unfit for more than two years because of obsessive compulsive disorder and diabetes mellitus.
Dr Phillips assessed Mr Griffin at the request of his solicitors, Dennis & Company, on 12 February 2001 and reported on 20 March 2001. Dr Phillips took a detailed history of the episodes on 29 and 30 August 1979, the attendances on Drs Degotardi, Ellard and White, and of Mr Griffin’s return to flying. He also took a history of the incident that occurred in the flight to Bahrain and the problems on the flight to Honolulu when his compulsion changed to an urge to shut the engines down during takeoff.
Dr Phillips recorded that at some stage Mr Griffin was interviewed by the Director of Flight Operations (Captain Terrell) who offered him three options: to resign and take superannuation, to be given 30 days notice by Qantas with no financial payout, or to attempt to return to normal duties but to fail the next time he used the flight simulator. Mr Griffin chose to resign. He then established a small importing business, importing rubber masks. He noted that he was having emotional difficulties at the time. Specifically he had problems communicating with others, was unable to cope with stress and often broke down in tears. Dr Phillips then recorded that Mr Griffin’s business “collapsed” shortly thereafter and he travelled to England where he developed compulsive thoughts of jumping in front of a train together with claustrophobia whilst in a train compartment. Dr Phillips also noted the history of Mr Griffin’s admission to Ashburn Hall and the subsequent return to England.
Under “Current Symptoms”, Dr Phillips recorded that Mr Griffin:
(a) becomes fearful when relating with people of high status, which he links with the way he was treated by Qantas senior pilots;
(b) he experiences recurrent thoughts of suicide, not uncommonly following stress in the relationship with his partner, and
(c) becomes suicidal when angry and had ruminated about running his car into the front of a large truck.
Under “Other Information”, Dr Phillips recorded that Mr Griffin first developed obsessional thoughts when he was 16 years of age when he became “obsessionally fixated” on the woman who later became his wife.
Dr Phillips then related Mr Griffin’s family and work history and noted that he suffered no compulsive thinking in relation to flying until the incident in August 1979. At the time of the examination, Mr Griffin was not receiving any psychological treatment, but attended his general partitioner intermittently.
Under “Opinion”, Dr Phillips stated that Mr Griffin developed an obsessive compulsive disorder “at/around 29 August 1979 whilst flying as co-pilot on a 747 aircraft.” He suffered generalised anxiety symptoms additionally. Dr Phillips also noted that Mr Griffin experienced a number of discrete anxiety problems in the years preceding 1979 and was probably predisposed to the development of an obsessive compulsive disorder. Contrary to the opinion of Dr Tym, he did not believe that the head injury in 1973 was “implicated in the genesis of his anxiety spectrum symptoms.” He stated that Dr Tym’s advice that Mr Griffin would have a rapid and permanent cure did not occur.
On Dr Phillips’ history, Mr Griffin had ongoing problems, principally in the domains of anxiety (including obsessive compulsive symptoms and phobic symptoms) but additionally depression spectrum symptoms. Whilst it was not easy to make a firm diagnosis at such a late state in Mr Griffin’s psychiatric career, he felt that Mr Griffin “might be said to have an adjustment disorder with mixed anxiety and depressive symptoms DSM IV 309.28 (chronic type).” Mr Griffin felt that he was “forced to resign during 1982 after a turbulent period when fellow pilots were reluctant to fly with him”. He remained obsessionally preoccupied with matters linked to his treatment by Qantas and additionally in relation to his psychiatric assessment and treatment. Dr Phillips acknowledged that it is always difficult to make a comment on the management of a patient more than 20 years after the “index event”.
Additionally, he noted that there had been considerable developments in the classification of psychiatric illnesses since that time and in the assessment and treatment of such illnesses. In retrospect, Dr Phillips believed that the psychiatrists who examined Mr Griffin during 1979 should have given more weight to his general anxiety symptoms leading up to and including 1979, in addition to the obvious and acute obsessive compulsive components of his disorder. He noted that there may have been evidence additionally to suggest that Mr Griffin had underlying personality problems. Taking all matters together, Dr Phillips believed that Mr Griffin should have been medically retired at the time of his acute problems. In Dr Phillips’ evaluation, “Mr Griffin experienced a worsening of his symptoms generally as a consequence of Qantas expecting him to continue flying and failing to organise appropriate medical treatment” (page 11).
Because Mr Griffin submitted his claim more than three years after becoming aware he had received an injury, it is necessary for him to establish that his injury resulted in “serious and permanent disablement”. The leading authorities on this issue are Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401 (‘Kuhna’) and Gregson v L & M Dimasi Pty Ltd [2000] NSWCC 47; (2000) 20 NSWCCR 520 (‘Gregson’).
In Kuhna the Court of Appeal considered the meaning of the phrase in the context of section 14(2) of the 1987 Act which deals with situations where a worker has sustained an injury as a result of his “serious and wilful misconduct”. In that situation compensation is not payable in respect of such an injury unless the injury has resulted in death or “serious and permanent disablement”.
Mr Kuhna suffered multiple abrasions to both elbows, a fractured nose, a fracture of two ribs on the right side, a comminuted fracture of the os calcis and an undisplaced fracture of the left lateral malleolus. As a result of his injuries he was unfit for any work from 4 June 1988 until 14 August 1988. He was permanently unfit for his pre injury work as a miner. The employer argued on appeal that the proper question was: was the worker seriously and permanently disabled for work generally, not just for his pre injury job? Cripps JA agreed with the employer’s submission that “disablement” in section 14(2) “is to be understood in an employment context” (at 405E). His Honour added, “that is to say, it is not sufficient merely to conclude that a worker suffers an impairment”. On this issue his Honour referred to Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125 at 127 where Jacobs JA, in dealing with the same phrase in the 1926 Act, said:
“The condition required under the section now being considered will be satisfied provided there is evidence that the disability was both serious and permanent. In the context it is correct, I think, to apply those words to employment situations, and it seems to me that that is what the medical evidence did in this case.”
Cripps JA then continued at 406B:
“In the present case, there was evidence that the worker not only suffered an impairment but that that impairment affected his physical capacity to undertake work. The argument, as I understand it, on behalf of the employer is that the disablement cannot be said to be serious because, before such a finding could be made, it was necessary for the learned trial Judge to consider the whole range of the worker’s activity and, it is submitted, that was not done.”
232. The Court rejected that submission. Cripps JA added that the fact that the worker may have been earning as much as he would have been earning had he remained an underground miner “did not mandate a conclusion that he had not been seriously and permanently disabled” (at 406G).
233. Mahoney JA agreed with Cripps JA and added at 402B:
“No doubt the word ‘disablement’ primarily refers to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is ‘serious’, the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively.”
234. Gregson concerned the meaning of “serious and permanent disablement” in section 65(13) of the 1998 Act, though the consideration of the phrase by Burke CCJ was strictly obiter. Nevertheless, the facts and his Honour’s comments are instructive. At [78] his Honour said:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”
In that case, the worker suffered a back injury with consequential back and leg pain. In cross-examination, the worker conceded that he could do some suitable light work but could not do his pre-injury duties. There were conflicting diagnoses in the case: Dr Stephenson diagnosing a lumbar strain and Dr Combe diagnosing a “disc derangement”. The CT scan disclosed “discal anomalies” (at [83]). On the question of impairment, Dr Stephenson assessed a 10 per cent impairment of the back and Dr Combe a 30 per cent impairment. In respect of the legs, Dr Stephenson assessed there to be no loss of use of the legs and Dr Combe assessed a 10 per cent loss of use of each leg. His Honour preferred the evidence of Dr Combe. Having regard to the findings made, his Honour added (at [105]) that the worker “certainly falls within” the description of “serious and permanent disablement” in section 65(13).
I considered the medical evidence earlier in this decision and will not repeat that analysis. I have found that Mr Griffin suffered an injury in the nature of a permanent aggravation, acceleration and exacerbation of the disease of obsessive compulsive disorder and the anxiety spectrum symptoms that go with that disorder. The question is whether that injury is an injury that has resulted in serious and permanent disablement of Mr Griffin. His injury has increased the severity of his condition and made it chronic. The worsening of his condition, caused by the fact that he continued to fly until November 1981, caused his symptoms to become increasingly entrenched and pervasive and generally worsened his obsessive compulsive disorder (Dr Phillips report 21 August 2009).
Until his injury, Mr Griffin had been a successful pilot with other business and recreational interests. Since ceasing work with Qantas, he has been unable to work as a pilot and his business wound down and ceased. Every attempt to engage in alternative pursuits has failed and his life never returned to normal. Mr Griffin’s evidence of his subsequent attempts to continue flying comfortably satisfy me that he was unfit to work as a pilot from 29 August 1979 or, in the alternative, from November 1981. This evidence is consistent with Dr Phillips’ conclusion, which I accept, that Mr Griffin was not suitable to continue his career as a pilot and was “substantially incapacitated for employment following the time of his resignation from Qantas and he remains incapacitated to undertake employment in the competitive open workforce at the present time” (Dr Phillips report 21 August 2009). In these circumstances, I have no hesitation in finding that Mr Griffin’s injury was serious and that it resulted in permanent disablement that prevented him from continuing in his usual occupation as a pilot and from engaging in higher-level technical work.
INCAPACITY
Submissions
238. Mr Stockley submitted that Mr Griffin was a high earner in 1979 and that probable earnings but for his injury would have increased over time. He argued that Mr Griffin has had no real manifestation of much economic capacity during the period of the claim and that his ability to earn in his injured state has never exceeded $100.00 to $200.00 per week in fairly menial mechanical work of the type he has attempted.
239. Mr Catsanos submitted that other factors have affected Mr Griffin’s capacity to work and that he is only entitled to weekly compensation arising from his work related injury. He conceded that probable earnings but for the injury could be adjusted at 2 per cent per annum from 1981 to the end of the period claimed in September 1999. He submitted that Mr Griffin held himself out as someone fit to fly and that he would have been fit for a job in a number of employment contexts bearing in mind his background and experience as a pilot and in business. He argued that Mr Griffin could have worked in the aviation or administrative industry, including flying.
Discussion and Findings – Incapacity
I accept Mr Catsanos’ submission that Mr Griffin is only entitled to compensation for so much of his incapacity that has resulted from his injury. The question of causation in the Commission is determined by the application of the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 where Kirby P (as his Honour then was) said at 463-4:
“What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
It follows from my earlier findings on injury, causation, and serious and permanent disablement (see, in particular, [219] and [237] above) that I am comfortably satisfied that Mr Griffin’s incapacity during the periods claimed in the Application has resulted from his injury. I have already dealt with Dr Allan White’s evidence, on which Qantas relied to support its submission that the incapacity resulted from the underlying constitutional condition. I have found that the injury permanently eroded Mr Griffin’s resilience, caused him to lose his employment with Qantas, and rendered him unable to fly or engage in any higher-level technical or administrative work, thus causing him a substantial incapacity on the open labour market. He suffered no other injuries after leaving Qantas. That his symptoms fluctuated over time does not detract from the fact that he never recovered from the aggravation, acceleration and exacerbation injury he received with Qantas.
242. The common sense evaluation of the causal chain leads to the compelling conclusion that Mr Griffin’s incapacity has resulted from his injury. Even if it were the case that other factors contributed to his incapacity (and I do not accept that to be so) that fact would not detract from the finding I have made because it is settled law that “incapacity may result from a work injury even though the…incapacity also results from a later, non-employment cause” (Calman v Commissioner of Police [1999] HCA 60 at [38]; (1999) 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585).
Mr Griffin claims compensation for two separate periods: 10 September 1979 to 6 November 1979 and from 19 May 1982 to 6 September 1999. He claims total incapacity for the first period. The medical certificates in evidence establish that he was unfit for work in that period and I make that finding. In a schedule tendered at the appeal hearing on 23 February 2010, Mr Griffin claimed $961.50 for that period. I gave Qantas leave to file a competing document within two days of the hearing, but the Commission has received no document. I therefore accept the figure of $961.50 as the current weekly wage rate for the period 10 September 1979 until 6 November 1979 and Mr Griffin is entitled to an award at that rate on the basis of total incapacity.
244. Mr Griffin’s claim from 19 May 1982 must be determined under the terms of section 11 of the 1926 Act (see Schedule 6 Part 4 clause 4 of the 1987 Act). Section 11 of the 1926 Act was in substantially the same terms as section 40 of the 1987 Act and the principles discussed in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) are applicable.
245. First, I must determine Mr Griffin’s probable earnings in the same or some comparable employment had he not been injured. His group certificate for the financial year ending 30 June 1981 reveals an income of $50,400.28 or $969.00 per week (rounded down to the nearest whole dollar). This was Mr Griffin’s wage as a first officer on a Boeing 747. Though in the normal course of events, Mr Griffin might have expected to progress to become a 747 captain, he has not relied on the wages for a captain.
Wage rates increased significantly between 1982 and 1999 and Mr Catsanos submitted that, in the absence of wage records, the appropriate adjustment is 2 per cent per annum. I do not believe this adjustment properly reflects wage movements in the period concerned. After informing the parties at the appeal hearing that the Commission has the power to inform itself (section 354(2) of the 1998 Act) I accessed the Australian Bureau of Statistics web site. Its records indicate that wage rates for full-time adult males from 1982 until 1992 increased by much more than 2 per cent. The highest increase for any 12 months period up to 1999 was in the 12 months to November 1984 when wages increased by 8.4 per cent and the lowest was in the 12 months up to November 1999 when the increase was 2.2 per cent. The average annual increase over the whole period (from November to November) was approximately 5 per cent.
In these circumstances, I believe an appropriate average adjustment of both probable earnings and ability to earn is at least 4 per cent per annum. I have allowed this figure, instead of 5 per cent, to allow for the possibility (though it seems unlikely) that pilots’ wages may not have moved in line with the national average. Applying this adjustment to $969.00 from 1982, with the first adjustment on 1 April 1983 gives the following (rounded down to the nearest whole dollar):
(a) 1 April 1983 $1,007.00
(b) 1 April 1984 $1,047.00
(c) 1 April 1985 $1,088.00
(d) 1 April 1986 $1,131.00
(e) 1 April 1987 $1,176.00
(f) 1 April 1988 $1,223.00
(g) 1 April 1989 $1,271.00
(h) 1 April 1990 $1,321.00
(i) 1 April 1991 $1,373.00
(j) 1 April 1992 $1,427.00
(k) 1 April 1993 $1,484.00
(l) 1 April 1994 $1,543.00
(m) 1 April 1995 $1,604.00
(n) 1 April 1996 $1,668.00
(o) 1 April 1997 $1,734.00
(p) 1 April 1998 $1,803.00
(q) 1 April 1999 $1,875.00
I find Mr Griffin’s probable earnings but for his injury to be as set out in paragraph [247] above.
Second, I must determine the amount Mr Griffin has earned or was able to earn in some suitable employment between May 1982 and September 1999.
Mr Griffin was educated in New Zealand and did well in his university entrance examination (Dr Phillips 20 March 2001, page six). He started his working life as a drafting cadet with the New Zealand Department of Land and Survey. I do not know if he finished his cadetship. He became interested in flying in about 1961, flew light aircraft initially, and then became co-pilot on Bristol Freighters. He started with Qantas in 1966 and flew Lockheed Electra Aircraft to New Zealand and subsequently Boeing 707s and then 747s. He resigned from Qantas in May 1982.
Mr Griffin continued to operate his importing and exporting business (Mauritius Import Export Services) after he ceased work with Qantas but he has no records from that business or any financial records of his earnings except for tax assessment notices for 1997 and 1998. I am required to determine Mr Griffin’s ability to earn as a worker, not the level of profit his business may have generated. More than one approach is open when calculating post-injury earnings when a worker is working in his or her own business (J & H Timbers v Nelson [1972] HCA 12; (1972) 126 CLR 625; Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227; [1983] HCA 37; 151 CLR 584).
In the absence of any financial records for Mr Griffin’s business (which I accept have been lost or destroyed) it is appropriate to calculate the value of Mr Griffin’s labour to the business. I accept his evidence that after he left Qantas he worked about 20 hours per week in the business (appeal hearing T99.3) and that the business ran down to nothing as it wound down because his mental attitude deteriorated so much that he lost all his franchises (see Mr Griffin’s statement attached to his wage schedule) and that the “business disintegrated because [he] couldn’t handle the pressures … of things that were going on with it” (appeal hearing T74.5). I accept that Mr Griffin’s inability to cope resulted from his injury with Qantas.
The Australian Bureau of Statistics records indicate that average total weekly earnings for full-time adult males (including overtime) for the quarter ending June 1982 were $352.10 per week or $8.80 per hour, assuming a 40-hour week. Allowing an hourly rate of $12.00 to allow for Mr Griffin’s additional skill level in running the business, I find that the value of his labour to his business in 1982 was $240.00 per week. The business ceased operating in late 1982 or early 1983.
Qantas makes much of the fact that Mr Griffin wanted to keep his pilot’s licence and in fact renewed his licence in a light aircraft. I do not consider those matters to be of any great significance in determining Mr Griffin’s ability to earn. As to wanting to keep his licence, Dr Phillips made the valid point that very few senior pilots would have wanted to lose their licence. He compared it to asking a medical practitioner if they wanted to maintain their registration, the answer is always “yes” (appeal hearing T51.8).
The more relevant evidence is that Mr Griffin’s attempts to return to flying were completely unsuccessful. He failed the theory examinations in the United Kingdom (arbitration hearing T32.42, T38.13) and only lasted about two trips flying a Cessna in New Zealand but then couldn’t face it and they did not renew his licence (arbitration hearing T54.18-25). I accept that his resignation from Qantas resulted from his injury. I accept Dr Phillips’ evidence that Mr Griffin was not fit to work as a pilot with Qantas, or in any other setting. Given Mr Griffin’s unsuccessful attempts to obtain and retain alternative employment since May 1982, I am satisfied that at all material times since then he has been unfit for any higher-level technical or administrative work of any type (Dr Phillips 21 August 2009).
Mr Griffin’s work history since 1982 has conclusively demonstrated that he has not been capable of finding and retaining any suitable full-time or long-term employment. Whilst there have been brief periods when he attempted to work in a more challenging position (for example in the motel in New Zealand), it is clear that, due to his reduced resilience as a result of his injury, he did not have the capacity to maintain that level of activity. Using his capacity to work in his own business as a guide, I find that his ability to earn in the labour market reasonably accessible to him since May 1982 was $240.00 per week in some low-level clerical or administrative position or labouring position.
Adjusting $240.00 per week at 4 per cent per annum from 1982 with the first adjustment on 1 April 1983 gives the following:
(a) 1 April 1983 $249.00
(b) 1 April 1984 $258.00
(c) 1 April 1985 $268.00
(d) 1 April 1986 $278.00
(e) 1 April 1987 $289.00
(f) 1 April 1988 $300.00
(g) 1 April 1989 $312.00
(h) 1 April 1990 $324.00
(i) 1 April 1991 $336.00
(j) 1 April 1992 $349.00
(k) 1 April 1993 $362.00
(l) 1 April 1994 $376.00
(m) 1 April 1995 $391.00
(n) 1 April 1996 $406.00
(o) 1 April 1997 $422.00
(p) 1 April 1998 $438.00
(q) 1 April 1999 $455.00
258. Third, deducting the figures for Mr Griffin’s ability to earn from his probable earnings gives the following:
(a) 1 April 1983 $758.00
(b) 1 April 1984 $789.00
(c) 1 April 1985 $820.00
(d) 1 April 1986 $853.00
(e) 1 April 1987 $887.00
(f) 1 April 1988 $923.00
(g) 1 April 1989 $959.00
(h) 1 April 1990 $997.00
(i) 1 April 1991 $1,037.00
(j) 1 April 1992 $1,078.00
(k) 1 April 1993 $1,122.00
(l) 1 April 1994 $1,167.00
(m) 1 April 1995 $1,213.00
(n) 1 April 1996 $1,262.00
(o) 1 April 1997 $1,312.00
(p) 1 April 1998 $1,365.00
(q) 1 April 1999 $1,420.00
Fourth, the next step is to consider if there are any discretionary factors that require the figures at [258] to be adjusted in the exercise of the section 11 discretion to ensure that the difference between steps one and two is “proper” in the circumstances of the case. I do not believe there are any discretionary factors in the present case. I have rejected Mr Catsanos’ submission that other factors have affected Mr Griffin’s capacity to work and found that Mr Griffin’s incapacity has resulted from his injury with Qantas. Mr Catsanos did not argue that the discretion should be exercised on the ground that Mr Griffin resigned from his position with Qantas. Had he made that submission I would have rejected it because I accept Mr Griffin’s evidence that he was asked to resign (arbitration hearing T28.5 – T29.19; appeal hearing T77.24) and that his resignation resulted from his injury. It follows that Mr Griffin had no future at Qantas.
The fifth step requires the making of the award. Mr Griffin claims compensation for himself and, from 19 May 1982 to 25 August 1983, three dependent children, from 26 August 1983 to 4 February 1985, two dependent children, and from 5 February 1985 until 30 September 1990, one dependent child. Qantas has not disputed dependency. The figures in [258] above greatly exceed the maximum statutory rate of compensation payable to Mr Griffin and he is therefore entitled to an award at the appropriate statutory rate for a worker with his number of dependants. Because Mr Griffin’s injury occurred before 30 June 1987 he does not get the benefit of the 20 per cent increase in weekly compensation introduced by the Workers Compensation (Benefits) Amendment Act 1991 and his compensation is calculated under the rates set in Schedule 6 Part 4 clause 4A(2)(b) of the 1987 Act (Workers Compensation (Savings and Transitional) Regulation 1992). His entitlements are set out at [262] below.
SUMMARY AND CONCLUSION
261. Having conducted a review on the merits, I have determined that Mr Griffin:
(a) received an injury on 29 August 1979, and as a result of continuing to perform his flying duties with Qantas up to November 1981, in the nature of a permanent aggravation, acceleration and exacerbation of the disease of obsessive compulsive disorder and anxiety spectrum symptoms whilst flying Boeing 747s in the course of his employment and to which his employment was a contributing factor;
(b) did not become aware until November 2002 that he had received an injury with Qantas;
(c) did not make a claim for compensation until 23 July 2008;
(d) did not, because of ignorance, claim compensation within six months (or three years) of becoming aware he had received an injury;
(e) received an injury that resulted in permanent and serious disablement, and
(f) has been, as a result of his injury, incapacitated during the periods for which he has claimed compensation and that he is entitled to weekly compensation as set out below.
DECISION
The Arbitrator’s determination of 4 March 2009 is revoked and in its place the Commission makes the following orders:
“1. The respondent employer is to pay the applicant worker weekly compensation on the basis of total incapacity from 10 September 1979 to 6 November 1979 in the sum of $961.50.
2. The respondent employer is to pay to the applicant worker weekly compensation on the basis of partial incapacity under section 11(1) of the Workers Compensation Act 1926, as saved under Schedule 6 of the Workers Compensation Act 1987 (‘the 1987 Act’), in the following amounts:
(a)19 May 1982 – 30 September 1982 $162.00
(b)1 October 1982 – 31 March 1983 $173.60
(c)1 April 1983 – 25 August 1983 $179.70
(d)26 August 1983 – 30 September 1983 $164.40
(e)1 October 1983 – 31 March 1984 $164.40
(f)1 April 1984 – 30 September 1984 $171.90
(g)1 October 1984 – 4 February 1985 $179.20
(h)5 February 1985 – 30 September 1985 $162.50
(i)1 October 1985 – 31 March 1986 $167.80
(j)1 April 1986 – 30 September 1986 $172.70
(k)1 October 1986 – 31 March 1987 $172.70
(l)1 April 1987 – 30 September 1987 $177.20
(m)1 October 1987 – 31 March 1988 $182.20
(n)1 April 1988 – 30 September 1988 $184.70
(o)1 October 1988 – 31 March 1989 $188.70
(p)1 April 1989 – 30 September 1989 $193.40
(q)1 October 1989 – 31 March 1990 $200.40
(r)1 April 1990 – 30 September 1990 $204.70
(s)1 October 1990 – 31 March 1991 $192.10
(t)1 April 1991 – 30 September 1991 $194.60
(u)1 October 1991 – 31 March 1992 $196.00
(v)1 April 1992 – 30 September 1992 $201.80
(w)1 October 1992 – 31 March 1993 $204.40
(x)1 April 1993 – 30 September 1993 $205.10
(y)1 October 1993 – 31 March 1994 $206.20
(z)1 April 1994 – 30 September 1994 $207.10
(aa)1 October 1994 – 31 March 1995 $208.40
(bb)1 April 1995 – 30 September 1995 $209.00
(cc)1 October 1995 – 31 March 1996 $210.10
(dd)1 April 1996 – 30 September 1996 $211.40
(ee)1 October 1996 – 31 March 1997 $212.90
(ff)1 April 1997 – 30 September 1997 $213.70
(gg)1 October 1997 – 31 March 1998 $217.70
(hh)1 April 1998 – 30 September 1998 $219.40
(ii)1 October 1998 – 31 March 1999 $223.30
(jj)1 April 1999 – 6 September 1999 $227.20
3. The respondent employer is to pay the applicant worker’s hospital and medical expenses under section 60 of the 1987 Act.
4. The respondent employer is to pay the applicant worker’s disbursements.”
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, which are assessed at $2,200.00 plus GST.
Bill Roche
Deputy President
8 March 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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