Humphrey and Comcare (Compensation)
[2016] AATA 783
•6 October 2016
Humphrey and Comcare (Compensation) [2016] AATA 783 (6 October 2016)
Division: GENERAL DIVISION
File Number: 2015/1773
Re: IAN HUMPHREY
APPLICANT
And:COMCARE
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 6 October 2016
Place Melbourne
The Tribunal decides to:
affirm the reviewable decision of a delegate of the respondent dated 20 February 2015 affirming its earlier decision dated 7 October 2014 dismissing the applicant’s claim.
………[sgd]…………….
Deputy President
CATCHWORDS – COMPENSATION – whether applicant gave notice of injury as soon as practicable after becoming aware of it – whether respondent prejudiced if late notice treated as sufficient – whether applicant’s failure to give notice resulted from ignorance, mistake or from any other reasonable cause – decision affirmed
LEGISLATION
Commonwealth Employees’ Compensation Act 1930; s 16
Compensation (Commonwealth Government Employees) Act 1971; ss 5(1), 53(1), 53(2), 53(4)Safety, Rehabilitation and Compensation Act 1988; ss 4(1), 5B, 14(1), 53, 53(3), 54(1), 124(1), 124(2), 124(3), 126(1)(c)
CASES
Australian National Airlines Commission v Cassidy [1964] HCA 32; (1964) 110 CLR 172
Banks v Comcare [1996] FCA 382
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495
FXWZ and Comcare [2011] AATA 364
Re Rees and Military Rehabilitation and Compensation Commission [2005] AATA 690; (2005) 88 ALD 148
Re Willis and Australian Telecommunications Commission (1989) 10 AAR 382; (1989) 19 ALD 665
The Commonwealth v. Connors [1989] FCA 78; (1989) 86 ALR 247; 10 AAR 395REASONS FOR DECISION
Mr Humphrey was an employee of the Commonwealth Bank of Australia (CBA) from 3 March 1970 to 5 February 1988. In a claim completed on 15 April 2014, Mr Humphrey claimed compensation for post traumatic stress disorder (PTSD) with secondary anxiety and depression that he attributed to his being threatened and robbed while serving a customer at the Huntingdale branch of the CBA. He also stated in his claim that he had first noticed that he was injured or ill in 1970/1971 and first sought treatment for it in 1973/1974 from Dr Ryall. His PTSD and symptoms of anxiety and depression had been made worse by successive robberies and other work-related events. A delegate of Comcare refused Mr Humphrey’s claim on the basis that, under s 53 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), he had not given notice of his injury as soon as practicable after he became aware of it and that it was prejudiced by his not having done so. The SRC Act does not apply in relation to an injury unless notice has been given or taken to have been given. The delegate’s decision dated 7 October 2014 was affirmed on review by another delegate in a decision dated 20 February 2015. I have decided to affirm the reviewable decision dated 20 February 2015.
LEGISLATIVE FRAMEWORK
SRC Act
Section 14(1) of the SRC Act states that:
“Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
As an employee of the CBA, Mr Humphrey is an employee for the purposes of the SRC Act.
Part V of the SRC Act is concerned with claims for compensation. Section 54(1) provides that compensation is not payable under the SRC Act unless a claim for compensation is made by or on behalf of the person under that section. No time is prescribed for the lodgement of a claim but there is another step that must be taken before the SRC Act may apply to an injury and it does have a time limit. That step is found in s 53(1), which provides:
“This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
(a) as soon as practicable after the employee becomes aware of the injury; or
(b) if the employee dies without having become so aware or before it is practicable to serve such a notice—as soon as practicable after the employee’s death.”
The “relevant authority”, to which reference s 53(1) refers is, in Humphrey’s case, Comcare.[1]
[1] SRC Act; s 4(1)
Section 53(3) qualifies the operation of s 53(1) and provides:
“Where:
(a) a notice purporting to be a notice referred to in this section has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section.”
The 1971 Act
The injuries in respect of which Mr Humphrey has claimed compensation were suffered between 1973 or 1974 and 5 February 1988 when he left the employ of the CBA. At that time, the SRC Act was not in operation as it did not commence until 1 December 1988.[2] The relevant legislation was the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act).
[2] SRC Act; s 124(1)
Part X of the SRC Act makes provision for injuries or diseases suffered while earlier legislation such as the 1971 Act were in force. It provides that, subject to its own provisions, the SRC Act applies in relation to an injury, loss or damage suffered by an employee whether or not it occurred before or after 1 December 1988. When an employee suffers an injury, loss or damage before 1 December 1988, he or she is entitled to compensation under the SRC Act only if compensation was, or would have been, payable in respect of that injury, loss or damage under the legislation then in force.[3] In Mr Humphrey’s case, that was the 1971 Act.
[3] SRC Act; ss 124(2) and (3)
As the condition in relation to which Mr Humphrey has claimed compensation is a condition for which he first sought treatment in 1973 or 1974, the definitions of the word “injury” and related expressions are those appearing in the 1971 Act. The word “injury” was defined in s 5(1) to mean:
“‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease”.
The definition of a “disease” was:
“‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development”.
Section 53 of the 1971 Act is in similar terms to s 53 of the SRC Act. Section 53(1) provides that:
“This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth –
(a)as soon as practicable after the occurrence of the injury;
(b)if the employee was not, immediately after the injury, aware that he had sustained an injury – as soon as practicable after he became so aware; or
(c)…”
Section 53(2) makes similar provision in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered by an employee.
Section 53(4) ameliorates the effect of ss 53(1) and (2) when it provides:
“Where –
(a)a notice purporting to be a notice referred to in a preceding subsection of this section has been served on the Commonwealth;
(b)the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and
(c)the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,
the notice shall be deemed to have been served in accordance with that sub-section.”
Reconciling the 1971 Act and the SRC Act
If Mr Humphrey gave notice of his injury, loss or damage under s 53 of the 1971 Act, he is taken to have given notice to the relevant authority under s 53 of the SRC Act. That is the effect of s 126(1)(c) of the SRC Act. At the same time, he must satisfy s 53 of the 1971 Act for, unless he does so, the 1971 Act would not have applied in relation to an injury suffered while it was in operation. As the High Court said of related provisions set out in s 16 in the earlier Commonwealth Employees’ Compensation Act 1930 (1930 Act), which preceded the 1971 Act, a decision made by the then Commissioner for Employees’ Compensation that s 16 prevented his consideration of a claim did not amount to a determination of a claim. Determination of the issues under s 16 were preliminary issues that had to be determined favourably to a claimant before the merits of the claim and an employee’s entitlement to compensation, if any, could be considered.[4]
[4] Australian National Airlines Commission v Cassidy [1964] HCA 32; (1964) 110 CLR 172 at [2]; 175; Taylor, Menzies and Windeyer JJ
INTERPRETATION OF SECTION 53
On behalf of Mr Humphrey, Ms Malpas relied on two previous decisions of the Tribunal: Re FXWZ and Comcare[5] (FXWZ) and Re Rees and Military Rehabilitation and Compensation Commission[6] (Rees). On my understanding of FXWZ, it assumes that matters of the sort set out in s 53 have been satisfied. In the case of Rees, the injury had been suffered when the Commonwealth Employees’ Compensation Act 1930 (1930 Act) was in force. Section 16 of the 1930 Act differs from s 53 of both the SRC Act and the 1971 Act in two ways. One was that it dealt with both notice of the injury and the lodgement of a claim. A second was that it was, in relation to giving notice of the occurrence of an accident in respect of which an employee suffered an injury, s 16(1) was more prescriptive than s 53. Notice of the accident relating to the injury had to be given to the Commonwealth “as soon as practicable” and before the employee left the employment of the Commonwealth. Unless the accident resulted in death, the claim had to be made within six months of the occurrence of the accident.[7]
[5] [2011] AATA 364; Senior Member Isenberg and Dr Alexander, Member
[6] [2005] AATA 690; (2005) 88 ALD 148; Senior Member Hunt and Dr Thorpe, Member
[7] 1930 Act; s 16(1)(a) and (b)
Like s 53(3), however, s 16(1)(a) and (b) were ameliorated. In relation to notice, the want, defect or inaccuracy in the notice did not prevent the consideration of a claim if the Commonwealth were not prejudiced by that want, defect or inaccuracy or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause: proviso (i). Failure to make a claim did not prevent consideration of a later claim if the failure was occasioned by mistake, absence from Australia or other reasonable cause: proviso (ii).
In Rees, the Tribunal considered only whether Mr Rees’ failure to make a claim within the prescribed time was “… occasioned by mistake, absence from Australia or other reasonable cause” within the meaning of proviso (ii) to s 16(1) of the 1930 Act. Events giving rise to Mr Rees’ injury occurred in 1970. The Tribunal decided that:
“There was approximately a 9 month delay between Mr Rees’ diagnosis by Dr Koller on 11 December 2000 and his application for compensation on 18 September 2001. Given that 30 years had passed since the incident giving rise to PTSD and he had to find material to support his claim, it can be said that he lodged his claim as soon as reasonably practicable. He did not deliberately set out to delay the lodging of his claim for review. He was not diagnosed with PTSD until 2000 and he pursued his claim conscientiously from the time he became aware of the possibility of there being a causal link between the incident which occurred at Manly dam and his medical condition, until the time of his application on 18 September 2001. It follows that there was reasonable cause for Mr Rees’ failure to make a claim in the time period specified and we find that the second proviso of section 16 of the Act is satisfied.”[8]
[8] [2005] AATA 690; (2005) 88 ALD 148 at [55]; 161
This is the factual finding by the Tribunal but it first referred to the cases of Re Willis and Australian Telecommunications Commission[9] (Willis) and Banks v Comcare[10] (Banks). In Willis, the Tribunal considered proviso (ii) to s 16(1) of the 1930 Act and, after considering various authorities, drew the following principles relating to its interpretation:
(1)Mere ignorance of the law is not a mistake but an incorrect view of the construction or effect of the law in a person’s own circumstances is a mistake of law and so a mistake for the purposes of s 16(1)(ii).[11]
(2)Whether there was “reasonable cause” occasioning a person’s failure to make a claim is assessed by reference to “… what was a reasonable course of conduct for the plaintiff in the circumstances in which he found himself. They have not judged the plaintiff by reference to some hypothetical man in hypothetical circumstances. It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases. …”.[12]
[9] (1989) 10 AAR 382; (1989) 19 ALD 665 at 393; 675; Hartigan J, President, Deputy President Forgie and Mr Lynch, Member
[10] [1996] FCA 382 (unreported judgment available on Lexis Nexis BC9601986) at [14] per Kiefel J
[11] (1989) 10 AAR 382; (1989) 19 ALD 665 at 390-391; 672-674
[12] (1989) 10 AAR 382; (1989) 19 ALD 665 at 393; 675
It was not put to the Tribunal in Willis that the applicant was ignorant of his right to apply for compensation but, rather, that he had made a conscious decision not to report his injuries. That is explicable because, unlike the ameliorating provisions of the 1971 Act and the SRC Act, proviso (ii) to s 16(1) did not include ignorance. The relationship of ignorance to mistake, which is included in proviso (ii), was considered by the Full Court of the Federal Court in Commonwealth of Australia v Connors.[13] Ignorance of the law, in the sense of not understanding that there was a right to claim compensation at all, was not a mistake for the purposes of proviso (ii).[14] A wrong view of the law is, however, a mistake of law and still a mistake. Ignorance of the law in the sense of being ignorant to claim compensation cannot constitute a “reasonable cause” under proviso (ii) either alone[15] or when combined with an employee’s not suffering any loss at work due to the condition later claimed or that those in authority knew that his condition had been the cause of his being unable to work for a period.[16]
[13] The Commonwealth v. Connors [1989] FCA 78; (1989) 86 ALR 247; 10 AAR 395; Northrop, Ryan and Keely JJ
[14] [1989] FCA 78; (1989) 86 ALR 247; 10 AAR 395 at 250; 398 per Northrop and Ryan JJ and 255; 402-403 per Keely J
[15] [1989] FCA 78; (1989) 86 ALR 247; 10 AAR 395 at 251-252; 399 per Northrop and Ryan JJ
[16] [1989] FCA 78; (1989) 86 ALR 247; 10 AAR 395 at 253-254; 401 per Keely J
In Banks, Kiefel J said of proviso (ii) to s 16(1) of the 1930 Act:
“… Unlike proviso (i), this proviso does not excuse inaction where there is no prejudice. And the words of proviso (ii) set out furnish little guide to what the a [sic] decision-maker might regard as an acceptable excuse. The expression ‘reasonable cause’ has been held to refer to some act or omission which operated to prevent the giving of notice and one which, in the circumstances prevailing, is consistent with a reasonable standard of conduct, of such a nature that it might be expected to delay the giving of the necessary notice or claim: see Black v City of South Melbourne [1963] VR 34, 38; Quinlivan v Portland Harbour Trust [1963] VR 25, 28. …”[17]
THE EVIDENCE
[17] [1996] FCA 382 (unreported judgment available on Lexis Nexis BC9601986) at [11]-[12]
Mr Humphrey’s history
Mr Humphrey’s written evidence is that he first suffered panic attacks following an incident when a man demanded cash from him while he worked at the Huntingdale branch of the CBA.[18] Given his memory that he worked at the South Melbourne branch from 1972 to 1973, that would mean that he experienced the demand sometime between 1970, when he was first employed at the Huntingdale branch, and 1972 or 1973 when he said that he worked at the South Melbourne branch. At the South Melbourne branch his evidence was that he dealt with customers attempting to pass forged cheques and attempting to defraud the bank.[19]
[18] Mr Humphrey’s affidavit sworn on 3 June 2016: Exhibit A at [3]
[19] Exhibit A at [4]
Mr Humphrey continued to suffer panic attacks while he was doing counter transactions at the Moorabbin branch in 1973 to 1974 as well as constant nausea. The panic attacks continued in or about 1974 when he worked at the Oakleigh branch and there was an attempted robbery. Mr Humphrey was caught up in events when he worked at the 221 William Street Branch of the CBA between 1976 and 1978. There had been a shooting at the Supreme Court and he was “bailed up by police” in the aftermath. There were also shootings at the Post Office and what Mr Humphrey described as “a jumper” at the Qantas building.[20]
[20] Exhibit A at [5]-[8]
Mr Humphrey married in 1978 and said that he had taken Valium daily before then.[21] There are no contemporaneous medical records and no note of this in the later medical records.
[21] Exhibit A at [23]
There were no incidents between 1978 and 1981 when Mr Humphrey was seconded to the Commonwealth Bank Finance Corporation (CBFC) to undertake accounting and leasing work.[22] On his return to a branch, being the Mount Waverley Branch, between 1981 and 1983, he was threatened by a person affected by drugs. Later, the man was shot dead by police, he said, while attempting to rob a nearby Chemist shop. The branch’s manager was kidnapped while he was there. Again, Mr Humphrey suffered panic attacks, he said.[23] Mr Daniel Armstrong gave evidence supporting Mr Humphrey’s that the branch’s manager had been kidnapped. He also recalled there being a hold up of the branch by two men armed with guns and asking for money while he was working there between approximately May 1982 and 1985. He confirmed that he had worked with Mr Humphrey at the Mount Waverley branch.[24]
[22] Exhibit A at [7]
[23] Exhibit A at [10]
[24] Mr Armstrong’s affidavit sworn on 8 June 2016; Exhibit B.
Between 1983 and 1988, Mr Humphrey said in his affidavit, he worked at the CBA’s Elsternwick branch. He recalled returning to the branch one day to find two women who worked there crouching behind the desk. He walked alongside the assailant and later hurt himself trying to open a back door to see where the person went after leaving the bank. Mr Humphrey sought medical assistance for bruised ribs. His panic attacks returned.[25]
[25] Exhibit A at [11]
Mr Humphrey resigned from the CBA in 1988 and worked as a relief Manager at the National Mutual Royal Bank (NMRB). He had panic attacks at that time. When the NMRB was acquired by the ANZ Bank (ANZ) in 1992, he continued to work as a manager at 594 St Kilda Road in Melbourne until 1997. During this time, there was a bomb scare and shots fired at the branch’s front window. From 1997, he worked on another project but took a redundancy package from the ANZ Bank when that project was discontinued. Mr Humphrey suffered a nervous breakdown at this time and was unemployed for some seven weeks.[26]
[26] Exhibit A at [12]-[14]
Various positions followed including both labouring work and work with companies engaged in software and educational resources but he was made redundant in each instance. Mr Humphrey also worked as a branch Manager for the Bendigo Bank in 2000 to 2001. There was an attempted robbery of the branch during that time and he dealt with the aftermath and staff concerns. He resigned from that position after being counselled in relation to his work performance. Positions with Bank West and Capital Finance followed in 2004 to 2005 and 2005 and 2006 respectively. He felt that he did well in the first position with Bank West but had difficulties with Capital Finance and he accepted a sum to leave its employ.[27] Mr Humphrey has not been employed since then. His personal situation deteriorated and he was homeless for quite some time.
[27] Exhibit A at [15]-[20]
CBA staff records
In response to a summons, the CBA wrote that it did not have any records relating to injuries sustained by Mr Humphrey or to any of the incidents that he had described.[28] It did produce staff cards dated from his appointment on 3 March 1970 to November 1973. His early reports were framed in positive terms and he was given a Merit Award on 3 August 1972. On 1 February 1973, however, a less than favourable report was written. Comment was made on his inability to retain knowledge for any length of time and his lack of enthusiasm in public relations and business acquisition when he was at the South Melbourne branch of the CBA. His standard of work was not regarded as satisfactory and his transfer to another branch was recommended. Note was made that Mr Humphrey’s unsatisfactory standard of work was in contrast to his earlier work at the Huntingdale branch.
[28] Exhibit 1; LM-22 at 5-6
In October 1973, the staff record noted that Mr Humphrey was undertaking a Diploma of Business Studies at Caulfield Technical College on three nights of each week. He indicated that the course would take six years and the he would like to remain in the metropolitan area during that time. A transfer to the Moorabbin branch of the CBA led to a positive report on his work.
Medical evidence
Mr Humphrey said in his claim that he first noticed that he was injured or ill in 1970/1971 and had sought treatment for it in 1973/1974 from Dr Ryall. Ms Lucinda Murdoch is an Acting Senior Legal Adviser with Comcare. She made a number of searches for medical practitioners to whom Mr Humphrey referred or who were named in other material. Among them was Dr Ryall but she stated in her affidavit that she had been unable to locate him.[29]
[29] Exhibit 1 at [31]
The earliest medical records that I have are those of the Mount Waverley Clinic beginning on 16 July 2003. From that time until May 2007, Mr Humphrey’s complaints related to aspects of his physical health. On 16 January 2004, Mr Humphrey was referred to Dr Wagner of the Epworth Medical Centre for a medical examination for insurance purposes.[30] Dr Wagner referred Mr Humphrey to Dr Conway Leung at the Mt Waverley Clinic. On the basis of Ms Murdoch’s affidavit, I find that the Epworth Medical Centre does not hold any records for Dr Wagner and she was unable to locate him.[31]
[30] T documents; T24 at 115
[31] Exhibit 1 at [29]-[30]
Dr Leung had earlier completed a medical examination for the same purposes on 5 January 2004. He referred to various physical ailments from which Mr Humphrey had suffered but answered the question whether he had suffered any mental health issues, including depression and anxiety, in the negative.[32]
[32] T documents; T24 at 120
The first reference in Dr Leung’s notes to any issue other than physical appears on 15 November 2005 when Mr Humphrey reported that he had wandered off after having five or six standard drinks and had behaved very badly. Mr Humphrey had no recollection of the events on the following day and was upset about what had happened.[33] Further consultations were about physical ailments until May 2007 when Mr Humphrey attended the Mt Waverley Clinic with his wife. At that time, he had been without work for a year and was depressed with low mood and loss of appetite. Mr Humphrey asked to be referred to a psychologist and Dr Leung prepared a mental health plan and made that referral to Ms Poulton.[34] On the basis of Ms Murdoch’s affidavit, I find that, despite extensive efforts, Ms Poulton has not been located and is not currently registered as a Psychologist.[35]
[33] T documents; T24 at 112
[34] T documents; T24 at 113, 125 and 131-133
[35] Exhibit 1 at [22]-[28]
Comcare sought a psychological report from Mr Gerry Egan, Psychologist and Clinical Hypnotherapist, regarding Mr Humphrey. In his report dated 29 December 2014, Mr Egan referred to Mr Humphrey’s General Practitioner having made a diagnosis of depression before 22 May 2013 and subsequently adding PTSD.[36] He gave a detailed history of Mr Humphrey’s employment with the CBA and of his report of robberies. It is consistent with Mr Humphrey’s evidence regarding those matters but more fulsome regarding the effect of those events. I refer in particular to the following:
[36] T documents; T25 at 137 Mr Egan’s notes are at Exhibit 1; LM-5
(1)Huntingdale branch of the CBA
“… [A]fter this hold-up the nightmares began, and he was ‘waking up in the middle of the night, bolt upright, in a cold sweat’. The nightmares consisted of a ‘video of the hold up replaying in my head and the strong smell of gelatine’. This went on for several months at least. He became very anxious at work, suffered panic attacks there and would ‘freeze up’ as well. The branch was located in an area where there were several factories, one of which manufactured gelatine. This meant that many local factory workers would attend the bank regularly, often in overalls, and the smell of gelatine became the primary trigger for Mr. Humphrey “freezing up”. Mr. Humphrey said he didn’t understand the reason for the symptoms at the time and just tried to keep functioning as best he could.”[37]
[37] T documents; T25 at 139
(2) South Melbourne branch of the CBA
“… though he found it still a stressful workplace environment, there were more staff and he always had co-workers nearby, so he felt safer in that work environment and the anxiety, panic and nightmares eased, though they did not stop.”
(3) Moorabbin branch of the CBA
“He was having panic attacks in front of clients at the counter and recalls feeling nauseous constantly. His anxiety was so bad that he would sometimes shake uncontrollably at the counter, his hands shaking so bad he couldn’t make entries in deposit books, and to remove himself. He was also having intrusive thoughts, nightmares, as well as frequent thoughts that something bad was going to happen.”[38]
[38] T documents; T25 at 139
(4) Oakley branch of the CBA
“… Panic attacks, nightmares, and so on continued. The handwriting problem came back so bad he was moved off the counter and put in the Enquiries section.”[39]
[39] T documents; T25 at 139
(5) 221 William Street branch of the CBA
“… [H]e had to get help because his hands shook uncontrollably, to the point where his writing became illegible, and at times his hands were ‘frozen’. … The anxiety, nausea, panic attacks and PTSD symptoms continued. His handwriting also continued to deteriorate.”[40]
[40] T documents; T25 at 139-140
(6) CBFC
“… During this time he ‘flourished’ and his symptoms abated. …”[41]
[41] T documents; T25 at 140
(7) Mt Waverley branch of the CBA
“… All the symptoms returned. …”[42]
(8) Elsternwick branch of the CBA
Events “… only served to reaffirm his sense of vulnerability.”[43]
“By this time all the classic PTSD symptoms, nightmares, flashbacks, other intrusive thinking, avoidance, hypervigilance and hyperarousal, emotional reactivity, as well as secondary anxiety, panic attacks were well and truly deeply entrenched.”[44]
(9) NRMB and ANZ
“… He had something of a breakdown in 1999, becoming depressed and actively suicidal on two occasions …”[45]
[42] T documents; T25 at 140
[43] T documents; T25 at 140
[44] T documents; T25 at 140
[45] T documents; T25 at 140
Mr Egan’s diagnosis was expressed in the following passage from his report:
“Mr Humphrey has been confronted with several events that involved actual and threatened death or serious injury, namely the bank hold-ups. He has suffered severe anxiety associated with being at work since early in his career with the CBA and this has included recurrent panic attacks, recurrent and intrusive distressing recollections (thoughts jumping into his mind, like ‘movies’ playing in his head), frequent nightmares (‘in technicolour’), feeling like traumatic events are recurring, has intense psychological distress at exposure to being in banks (e.g. will go to auto tellers after hours because he feels safer and can see what is around him) or similar places, and has had a longstanding history physiological reactivity (in particular the physical shaking, panic attacks in front of clients at the bank, ‘frozen’ hands, badly deteriorated handwriting) to exposure to cues that relate to the events. These symptoms began after the first hold-up in 1970. The severity of the symptoms fluctuated over the years, mostly depending on the relative exposure to threat in his workplace, but would deteriorate after further successive events.”[46]
[46] T documents; T25 at 141
Later in his report, Mr Egan explored when the symptoms first appeared. Panic attacks, Mr Egan said, began at the Huntingdale branch in 1970 and, except when he had a back-room position at the CBFC, continued throughout his career with the CBA. Mr Humphrey was first prescribed Valium for his anxiety and panic well before 1978. It remains a significant problem. The only difference is that, whereas they were mostly associated with a work-related situation, they can now occur unexpectedly and without any apparent trigger.
As for symptoms of depression, Mr Egan reported that Mr Humphrey’s first clear impression of being depressed occurred in 1999. Mr Egan suspected that they occurred earlier and that the sudden death of Mr Humphrey’s baby daughter in 1988 would have made a significant contribution. The breakdown of his marriage was the start of a descent into deep depression involving extreme social isolation and withdrawal. In summary, Mr Egan concluded that symptoms of what is now described as PTSD and Panic Disorder were quite entrenched from Mr Humphrey’s early years at the CBA. The panic attacks were originally situation specific to his workplace or to a place similar to his workplace but have since generalised to the point where he can experience them without any trigger. Both conditions were worsened by subsequent exposure to robberies and attempted robberies. The breakdown of his marriage and loss of his daughter were more likely to have contributed to his depression than to his PTSD and Panic Disorder. His PTSD and Panic Disorder would, however, have contributed to his depression.
Mr Humphrey continues to be under the care of Dr Praveen Thottappilil, Consultant Psychiatrist. Dr Thottappilil referred to multiple traumas endured by Mr Humphrey while employed by the CBA, ANZ and Bendigo Bank resulting in his suffering PTSD. His report dated 16 March 2015 indicated that he had a continuing role in Mr Humphrey’s care and treatment.[47]
[47] Exhibit 1; LM-13 at 7-8
CONSIDERATION
Comcare does not dispute that Mr Humphrey suffers from psychiatric conditions that may generally be described as PTSD with anxiety and depression. I do not need to make a finding that he does suffer from those conditions or that all or any of them are an injury or disease within the meaning of the SRC Act or its predecessor, the 1971 Act. Section 53, whether in the SRC Act or in the 1971 Act, is concerned with a question that arises before those findings need to be made. What is relevant is when Mr Humphrey came to be aware that he was unwell and that his being unwell arose out of, or was contributed to by, his work with the CBA. A disease is, after all, an “ailment” or an aggravation of an ailment.[48]
[48] SRC Act; ss 4(1) and 5B and see also 1971 Act; s 5(1)
This definition was considered by Drummond J in Comcare v Mooi[49] (Mooi). His Honour considered the meaning of the word “ailment” and the manner in which the definition of “disease” is to be understood. He began by looking at the ordinary meanings of the word and the difficulties in determining whether a person is suffering from a disease:
“… The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent, from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment’ (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.
There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person’s mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term ‘injury’ for the purposes of s 14(1) of the Act.”[50]
[49] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495
[50] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495 at [10]-[11]; 442-443; 693-694; 163-164; 498
Drummond J went on to conclude that the words used in the SRC Act to define the concepts should be understood according to their ordinary usage and the context in which they are used in the SRC Act:
“… But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act [1988] to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. …”[51]
[51] [1996] FCA 1587; (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160; 42 ALD 495 at [12]; 443-444; 694; 164-165; 499
It does not matter whether he had a formal diagnosis of his condition or whether he required treatment or sought compensation. That follows from the fact that the notice to which s 53 refers is not a claim for compensation although, for practical purposes, a claim may be taken to be notice as well as a claim.
On the basis of Mr Humphrey’s evidence, I find that he was not aware that he was suffering from PTSD until sometime between 2011 and 2013 or perhaps 2014. He had not been aware of any earlier diagnosis on his condition when he sought treatment in the 1970s. His awareness of the diagnosis came about after he was rescued from his life on the streets and long after he had left employment. The formal diagnosis is one thing but that does not mean that Mr Humphrey was not aware that he was not functioning as he should and that he was not well. I find that he was aware that he was suffering from panic attacks from, at the earliest, 1970 or 1971 and, at the latest, 1972 or 1973 when he was still working at the Huntingdale branch of the CBA. By then, he had experienced a robbery at the bank. On the basis of what he told Mr Egan, I find that, in addition to panic attacks, Mr Humphrey was also suffering from recurrent and intrusive distressing recollections of the robbery. The panic attacks and recollections increased with each successive incident at the bank and, later, by an incident at the Post Office.
Although I accept that he did not complete the details on his claim form and simply signed it, Mr Humphrey signed the form containing the statement that he first sought treatment for his condition from Dr Ryall in 1973 or 1974. His doing so is consistent with his also telling Mr Egan that he had been taking Valium daily long before his marriage in 1978.
In answer to Mr Wallace, Mr Humphrey first said that he knew that the incidents had occurred at work but had not joined the dots between those events and the way he was feeling. He had known that they had some effect on him but the general consensus was that people just got on with things. Mr Humphrey agreed with Mr Wallace that he knew at the time that there was a link between the incidents that had occurred at work and the panic attacks from which he was suffering. His evidence is consistent with his seeking treatment from Dr Ryall and with his being prescribed Valium. That leads me to conclude that Mr Humphrey was aware both that he was unwell and that his being unwell was related to his employment by the CBA at some time from 1973.
Did Mr Humphrey give notice to the relevant authority as soon as practicable after he became aware of it? I have decided that he did not. There is no indication in the report of his review at the South Melbourne branch on 1 February 1973 that his poor performance might be attributed to his mental state following events at the Huntingdale branch. I do not have records after October 1973 but it remains the fact that he had another fifteen years or so to tell the CBA of the mental and emotional difficulties that he was experiencing in carrying out his work. In that time, I find, he gained an awareness that he did not experience those difficulties to as great an extent when he was working in the CBFC and without exposure to the general public as he did when he worked in a branch with that exposure. As he said, for all but the years between 1978 and 1981 when was engaged with work with the CBFC, Mr Humphrey suffered panic attacks and they were exacerbated by further incidents I have described above. The connection between his panic attacks and his workplace was underlined for him by those additional incidents and yet he did not seek assistance from the CBA whether by way of compensation or otherwise.
While I accept on the basis of his evidence that Mr Humphrey was suffering from panic attacks at this time, I am not satisfied that it was not practicable for him to advise the CBA about his condition at some time well before 2014 when he made his claim. He was able to seek medical assistance from Dr Ryall in 1978 and from Dr Ryall or another medical practitioner quite some time before that in order to be prescribed Valium. Mr Humphrey had insight into his condition to be able to seek that assistance. That would have been the time at which to tell the CBA of his condition and of his awareness of its cause but he did not do so.
I also find that Mr Humphrey had insight into the relationship between a “work problem”, as one of the issues he was facing at the time, and his feelings of agitation and sleeping difficulties in June and July 1990 when he consulted Dr Hamilton. That is apparent from Dr Hamilton’s notes.[52] Mr Humphrey also acknowledged in cross-examination that he understood that work affected his well-being. He then qualified that by saying that he might have had that insight but added that he was receiving outstanding reports each year at work. The fact that he was receiving those outstanding reports does not detract from his acknowledgment, supported as it is by Dr Hamilton’s notes, that he was aware of a relationship between the incidents he experienced at work and his symptoms of, at that time, agitation and sleeplessness.
[52] Exhibit 1; LM11 at 16
My conclusion means that I find that Mr Humphrey has not complied with s 53(1) of the SRC Act or of the 1971 Act. He was aware of his condition and of its relationship to his work as early as 1978 as well as in the 1990s but did not give the CBA notice of his injury before he lodged the claim for compensation he completed on 15 April 2014. Was it practicable, and so feasible, for Mr Humphrey to give notice of his condition to CBA before that time? Although he was suffering from various symptoms, Mr Humphrey said that he was also receiving outstanding assessments of his work with the CBA. He said at one stage that he was not aware that CBA had a workers’ compensation scheme but he resiled from that and I will come to that at [48]-[49] below. There is nothing in the evidence on which I am satisfied that it was not practicable for him to notify CBA of his condition in the 1970s, 1980s or even the 1990s and so long before 2014. I am not satisfied, therefore, that Mr Humphrey has satisfied the condition prescribed by s 53(1).
That brings me to the ameliorating provisions of s 53(3). Mr Humphrey has given notice to Comcare of his injury when he lodged his claim. If Comcare is not prejudiced by giving notice well after the incidents to which he attributes his condition, the effect of s 53(3)(c) is that he will be taken to have given notice under s 53. I am satisfied, though, that Comcare is prejudiced by the passage of time and I will now set out my reasons for reaching that conclusion.
Some 40 years have passed since the first of the incidents to which Mr Humphrey refers as a cause of his conditions. Ms Murdoch’s enquiries show that she has been unable to trace those involved in his early treatment such as Ms Poulton and Dr Wagner. There are gaps in his medical records. The CBA has not been able to find records of the events to which Mr Humphrey has referred and to which he attributes his condition. Mr Armstrong has confirmed Mr Humphrey’s memory of the manager’s being kidnapped and of there being an armed hold-up but, on the evidence of Mr Humphrey, I find that those events did not cause his condition in the first place. Evidence on that can only relate to a part of the picture and Comcare has been unable to find further evidence from CBA relating to that part or to any other parts of the picture. Had it been advised of Mr Humphrey’s claim at a time close to the events, the CBA, and so Comcare, would have been in a position to identify the personnel involved and to locate documents. That is the practical reason behind the requirement that notice be given. As it is, both are prejudiced in their abilities to investigate the incidents and events to which Mr Humphrey has referred. Those incidents and events include not only those relating to his employment with the CBA but to others in his personal life.
That takes me to whether Mr Humphrey’s failure to give notice resulted from ignorance, mistake or from any other reasonable cause within the meaning of s 53(3)(c). There is no suggestion that his failure was due to the other grounds set out in s 53(3)(c) i.e. his being absent from Australia at any time. During the course of cross-examination, Mr Humphrey said that it was news to him that the CBA had a worker’s compensation scheme but agreed that he could have just forgotten that it had such a scheme. Either way, Mr Humphrey has not claimed that his failure to give notice of his condition resulted from his being ignorant of there being a workers’ compensation scheme.
On the evidence, I am not satisfied that Mr Humphrey has made a mistake. He has not, for example, decided at an earlier stage that his condition was not compensable. I have found that he was aware of his condition and its relationship to his work at a much earlier stage. Having regard to the overall course of events, I find that he did not turn his mind to whether he could claim any form of compensation from the CBA, and so from Comcare, until the issue was raised by Mr Egan in the context of funding Mr Humphrey’s treatment. That was many, many years after he had himself come to the recognition that his condition had some relationship with his work.
On the evidence, I find that Mr Humphrey did not have a reason why he did not give the CBA notice. It was not a situation in which he thought that he had not suffered any ill effects from the robberies and the like. He knew that he had and he identified them as panic attacks and his hand became frozen so that he could not write. When he worked away from the public, as he did with CBFC, he did not suffer from the symptoms but, when he returned to an area where he had to deal with the public, so did they. On his own evidence, I find that they affected his ability to work so that, in the case of his frozen hand, for example, he was given other duties. Certainly, Mr Humphrey was able to achieve good results and good reports but he was, I find, aware throughout that of the link between his workplace and his mental health but he simply did not advise the CBA of his difficulties. Without more, failure to turn one’s mind to a matter or simply not doing something, does not amount to a reasonable cause for not doing it. Mr Humphrey has not given me that something extra for he was otherwise able to function in his work for many years after the incidents even though he was suffering symptoms. He explained that he had not applied for Centrelink benefits because he had property and tried to survive on his own resources but did not explain why he did not give the CBA notice of his condition and what he believed was its relationship to his employment with it. I am not satisfied, therefore, that his failure to give notice resulted from a reasonable cause.
For these reasons, I affirm the reviewable decision of a delegate of Comcare dated 20 February 2015.
I certify that the fifty-one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.
Signed: ……….................[sgd]......................................
Associate
Date of Hearing 24 June 2016
Date of Decision 6 October 2016
Counsel for the Applicant Ms Angela Malpas
Solicitor for the Applicant Ms Jodie Gerritsen
Robinson GillCounsel for the Respondent Mr John Wallace
Solicitor for the Respondent Ms Lucinda Murdoch
Comcare
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