Jamieson and Comcare (Compensation) - [2019] AATA 5424

Jamieson and Comcare (Compensation) [2019] AATA 5424 (17 December 2019)
Division:GENERAL DIVISION
File Number(s): 2017/4887
Re:Alexander Jamieson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:17 December 2019
Place:Canberra

The decision under review is set aside and in substitution thereof the Tribunal decides that Mr Jamieson is entitled to compensation for incapacity from 6 January 2017 to 30 June 2018.
The matter is remitted to Comcare to determine the amount of compensation that is payable to Mr Jamieson, if any.
........................................................................
Mr S. Webb, Member
COMPENSATION – accepted injury – compensation claim for incapacity – meaning of ‘incapacitated for work as a result of an injury’ – causes of incapacity under claim – nature of ‘injury’ and contributory causes – aggravation of adjustment disorder significantly contributed to by employment - ‘disease’ – latent personality trait triggered by employment circumstances - increased susceptibility – increased susceptibility not a disorder or an impairment but a persisting symptom of ‘disease’ – subsequent exposure to perceived stressor triggered recurrence of symptoms causing incapacity – recurrence causally related to accepted ‘injury’ – incapacity for work – causal nexus between incapacity and injury established - decision set aside and substituted
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 19, 21, 67
Allianz Australia Insurance v GSF Australia Pty Ltd [2005] HCA 26
Alcan Gove Pty Ltd v Zabic [2015] HCA 33.
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Baranski v Comcare [2012] FCA 925
BEL16 v Minister for Home Affairs [2019] FCA 1678
Caldipp Pty Ltd v Delov [2002] FCAFC 352
Canute vComcare [2006] HCA 47
Comcare v Martin [2016] HCA 43

Comcare v Power [2015] FCA 1502
Comcare v Simmons [2014] FCAFC 4
Commonwealth of Australia v Smith [1989] FCA 189
CSR Ltd v Della Maddalena [2006] HCA 1
Dean v Australian Postal Corporation [2010] FCA 680
Dunkerley and Comcare [2014] AATA 381
Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34
Fox v Percy [2003] HCA 22
Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560
Hurley v ACT (Compensation) [2019] AATA 2450
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Lim v Comcare [2016] FCA 709
Lopez Avila v K & S Freighters Pty Ltd [2015] FCA 962
McAuliffe v Comcare [2002] FCA 769
Mitsopoulos v Comcare [2012] FCA 627
Oliver and Comcare (Compensation) [2019] AATA 888
Prain and Comcare
[2016] AATA 459

Prain v Comcare [2017] FCAFC 143
Re Dianne Moon and Telstra Corporation Ltd [2006] AATA 996.
Re Prica and Comcare [1996] AATA 218
Rothwell v Caverswall Stone Co Ltd [1944] 2 All E.R. 350
Singleton v Comcare [2019] FCA 2104
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Telstra Corporation Limited v Bowden [2012] FCA 576
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition
World Health Organisation, International Classification of Diseases, Version 11, 18 June 2018
REASONS FOR DECISION
Mr S. Webb, Member
17 December 2019

Alexander ‘George’ Jamieson’s mental health was adversely affected in his previous employment by the Commonwealth. He claimed and was paid compensation. He returned to work under a fixed term employment contract. His mental illness persisted. An incident occurred that caused him to decline further employment. He claimed compensation for incapacity. Comcare decided to reject his claim by primary determination and on reconsideration. Unhappy with this result, Mr Jamieson applied for review.
At the outset of proceedings, Mr Jamieson was legally represented. This arrangement came to an end before the original hearing set down by the Tribunal. Thenceforth, Mr Jamieson represented himself without legal assistance. Difficulties arose.
Like so many self-represented applicants in compensation cases, Mr Jamieson struggled with legislation and legal issues he was not familiar with. It appears to me that his difficulties presenting his case without legal representation were exacerbated by psychological issues relating to his mental illness. This is no criticism. It was for this reason, and being mindful of the principles Jagot J set out in Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[1] that latitude was allowed in the proceedings to accommodate Mr Jamieson’s circumstances. As much assistance was provided as could be without compromising the Tribunal’s impartiality or causing procedural unfairness to either party.
[1] [2011] FCA 299 at [21]-[26].
Mr Jamieson sought to agitate matters that were not in dispute and which had previously been dealt with by Comcare when determining to accept liability to pay compensation to him in respect of the ‘injury’ sustained in his previous employment. The initial determination of Comcare’s liability for Mr Jamieson’s work-related injury is not the subject of a reconsideration decision that is reviewable by the Tribunal, and it remains in operation. Furthermore, Comcare did not seek, or urge the Tribunal to make, factual findings contrary to the determination accepting liability for the injury.
This notwithstanding, Mr Jamieson wanted to summons people employed by his former employer and by Comcare to give evidence. The evidence he sought to adduce related to the circumstances in which he was injured, his intent being to prove that he was harmed and to rebut the diagnostic opinion of Dr Saboisky, a consultant psychiatrist who examined him and produced medico-legal reports for Comcare.
As there is a good deal of evidence addressing the circumstances in which Mr Jamieson’s ‘injury’ occurred, and there is no dispute about the circumstances in which he was injured in his previous employment, I refused his request for summons. Mr Jamieson made extensive written submissions, asserting facts and attaching other documents he considered to be relevant to his case. These documents are in Exhibit 2.
The application came on for hearing on 15 and 16 November 2018. Mr Jamieson gave some oral evidence, but was not cross-examined. An issue arose from his evidence about medical treatment. With the agreement of the parties, the hearing was adjourned on 15 November 2018, part heard, in order to allow additional medical materials to be obtained and provided to the Tribunal.
Further materials were given to the Tribunal. Mr Jamieson gave the Tribunal several documents in which he asserted facts, made submissions, raised issues and to which he attached other documents. These documents are dated 3 December 2018, 6 January 2019, 11 February 2019, 15 February 2019, 3 July 2019, 19 July 2019, 5 August 2019 and 16 August 2019.
The hearing resumed on 22 August 2019. At the outset, I raised issues about Mr Jamieson’s health and the preferred manner for taking evidence from his treating psychiatrist, Dr Harrison. I requested Mr Jamieson discuss this with Dr Harrison, which he did.
Mr Jamieson gave further oral evidence. He handed up a document which he described as a speech he wanted to give. This was taken in as Exhibit 18. Mr Jamieson was cross-examined without incident. He did not appear to be unduly distressed and he did not raise any issue about his health or request a break at any time, despite expressly being given the opportunity to do so. Nevertheless, it can be accepted that he found the process of cross-examination stressful and confronting. On several occasions, Mr Jamieson attempted to argue against questions being put to him by Mr Woulfe, counsel for Comcare. A good deal of latitude was allowed. Nevertheless, on a number of occasions I advised Mr Jamieson to answer the question put to him if he could, or to say if he could not, and to make notes of issues he disagreed with or that he might want to revisit. I am not aware that Mr Jamieson made any such notes.
The following day, 23 August 2019, Dr Harrison and Dr Saboisky attended in person and gave oral evidence concurrently.[2] Before doing so, Dr Harrison informed me that she was comfortable giving evidence in front of Mr Jamieson and she had discussed this with him. I advised the doctor to inform me if at any stage she became concerned about Mr Jamieson’s health, or the effect of her evidence upon his health or their therapeutic relationship. On this basis, I was satisfied that it was appropriate to proceed.
[2] Associated documents, including the notes prepared by each doctor, were taken into evidence: Exhibits 25, 26 and 27.
I note in passing that some sensitivity is required when conducting a hearing in which a self-represented applicant with a mental illness is exposed to evidence, and cross-examination in particular, of a treating psychiatrist. There is a risk that evidence given by the psychiatrist may be perceived negatively, or as a betrayal of trust, by the applicant, such that the mental health of the person, or the therapeutic relationship between the psychiatrist and her patient, may be placed at risk. It was for these reasons issues of this kind were expressly raised with Mr Jamieson and those representing Comcare at the hearing in November 2018 and in August 2019. Considerations of this kind were taken into account when deciding how best to take evidence from Dr Harrison. Even though, in the usual course, a treating psychiatrist would not be called to give evidence concurrently with an independent expert, it appeared to me that this was the most preferable course in this case.
Mr Jamieson did not appear to be distressed, confused or unable to marshal his thoughts in this part of the hearing, when Dr Harrison gave oral evidence. He put questions to Dr Saboisky addressing, among other things, the issue of diagnosis with which he strongly disagreed. Mr Jamieson did not raise any issue in respect of his health at this time; nor did Dr Harrison.
In view of the fact Mr Jamieson was representing himself, and in order to assist him, I prevailed upon Comcare to make closing submissions first. That is what occurred.
When it came to Mr Jamieson making closing submissions, he commenced doing so but rapidly became upset. It was clear to me that he was becoming unwell and, over Comcare’s initial objection, I halted the hearing. Mr Jamieson left the hearing room and was assisted by Tribunal officers and his wife. Shortly thereafter, I adjourned the hearing and issued directions which had been agreed between the parties, setting a timetable for written submissions to be made without further evidence being adduced.
Subsequently, on 26 August 2019, Mr Jamieson requested (and was provided with) a transcript of the hearing, asserting that he could not recall what had transpired. On 27 August 2019, he informed the Tribunal that he suffered “a psychiatric relapse” commencing with the start of the cross-examination. He sought leave to adduce further evidence and asked –
Is there a justification to restart the Hearing due to the unfortunate relapse of my accepted and on-going psychiatric illness, from the start of the first day of proceedings?[3]
[3] Exhibit 29.
I heard the parties on these issues. I refused Mr Jamieson’s application to restart the hearing. I did not consider it necessary or desirable for him to be re-examined or for Dr Harrison and Dr Saboisky to be recalled. Nonetheless, I accepted his application to put on further materials. On 6 September 2019, I vacated my previous directions and issued new directions to ensure both parties had a reasonable opportunity to present their respective cases.
Mr Jamieson provided additional materials and written submissions on 27 August 2019, 25 September 2019, 15 October 2019 and 7 November 2019, which I have placed in Exhibit 29.
On 1 November 2019, Comcare made written submissions, but did not seek to adduce any further evidence.
Before dealing with the issues to be decided, I will first address the contextual facts.
CONTEXTUAL FACTS
In the course of the proceedings, the significance of Mr Jamieson’s experiences as a child arose in the context of medical opinions about the correct diagnosis of any psychiatric condition and factors that may have causally contributed to the condition over time. I do not propose to set out details of Mr Jamieson’s childhood experiences and it is not necessary to do so for present purposes.
On the present materials, Mr Jamieson did not have a history of mental illness prior to 2013.
In that year, he experienced issues at work in his then employment by the Office of the Official Secretary to the Governor-General (the employing agency) (Government House)[4] which caused him to become stressed and anxious.
[4] Section 37 Tribunal Documents (T)9, T10, T20 and T20a.
On 13 October 2013, Mr Jamieson experienced an acute myocardial infarction which was successfully treated with the insertion of 3 stents. Nonetheless, his mental health was affected and he became depressed.
He returned to work. Things did not go well.[5] The causes of his previous stress and anxiety persisted. He experienced interpersonal difficulties. He perceived that a cohort of previously trusted co-workers turned on him. He was not offered a position he aspired to, which he considered to be his due. He lost trust in management and felt excluded, maligned and betrayed. He experienced panic and anxiety attacks and other psychological symptoms.
[5] Ibid, T12b, T12c, T12d, T12e, T12f, T12g, T15, T16, T17 and T18.
There is no controversy that Mr Jamieson sustained an adjustment disorder to which his then employment contributed to a significant degree.
It was in respect of this injury that he claimed compensation on 22 July 2014.[6]
[6] T11.
On 1 August 2014, Mr Jamieson’s previous employment by the employing agency came to an end.[7]
[7] T12h.
On 2 September 2014, Mr Jamieson provided letters to Comcare, addressing issues he perceived with a Rapid Response Report[8] prepared by Brosnans Corporate Services (the Brosnan report).[9] He also provided additional information to Dr Oelrichs, a consultant psychiatrist briefed by Comcare, who examined him on 29 August 2014.[10]
[8] T20.
[9] T23.
[10] T24.
On 5 September 2014, Dr Oelrichs produced a report in which she stated –
There has been no clear documentation of Mr Jamieson suffering from an adjustment disorder prior to 19 March 2014 however there has been some indication from Mr Jamieson’s history that he developed anxiety in 2013 regarding dealing with workplace events and had also been recommended for some psychological intervention and antidepressant following his myocardial infarct in October 2013.
…
From review of GP’s notes and from Mr Jamieson’s description it appears that he first developed an adjustment disorder with anxiety and depressed mood following events of 19 March 2014…
…
It is possible that Mr Jamieson has developed adjustment disorder with anxiety and depressed mood following his myocardial infarct in October 2013…
His condition in March 2014 is likely to have been a recurrence of the pre-existing adjustment disorder and in relation particularly to workplace stresses on 19 March 2014. The nature of the aggravation is a worsening of the diagnostic indicators…[11]
[11] T25, folios 184-185.
On 16 September 2014, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), Comcare accepted liability to pay Mr Jamieson compensation for ‘aggravation of adjustment reaction with mixed emotional features’,[12] being ‘a psychological injury which was significantly contributed to by [Mr Jamieson’s] employment’.[13]
[12] T27, folio 192.
[13] Ibid, folio 201.
The employing agency requested reconsideration of this decision.[14] Mr Jamieson provided an extensive response.[15]
[14] T32.
[15] T35 and T38.
Dr Hughes, treating general practitioner, referred Mr Jamieson to Michelle Fisher, a psychologist, for ‘help with his anxiety/depression’.[16] On 19 November 2014, Ms Fisher reported little progress over 6 sessions and suggested a diagnosis of ‘Somatic Symptom Disorder’.[17] Ms Fisher is alone in this diagnosis.
[16] T34; T43 refers.
[17] Exhibit 5.
On 2 February 2015, Dr Oelrichs provided a supplementary report to Comcare in which she re-iterated her previous conclusions in relation to diagnosis and causality.[18]
[18] T40.
On 10 February 2015, Comcare affirmed the decision accepting liability for Mr Jamieson’s ‘injury’.[19] The employing agency cavilled with aspects of the reasoning for this decision, but did not seek further review.[20]
[19] T41.
[20] T42.
Recovre provided Mr Jamieson with rehabilitation services.[21]
[21] T45-T74, T77-T78, T81-T83.
Mr Jamieson had issues with his rehabilitation case manager. I note the documents to which Mr Jamieson drew attention appear in Exhibits 8, 9 and 10.
On 14 April 2015, Alison Hooker, a Recovre rehabilitation consultant, stated –
Recovre attended a General Practitioner Case Conference today (14.04.2015) with Mr Jamieson and treating General Practitioner Dr Paul Hughes where Mr Jamieson was upgraded from being fit for work six hours per week to fit for full time hours in suitable positions with a supportive employer as determined by Mr Jamieson and Dr Hughes.[22]
[22] T44.
Dr Hughes referred Mr Jamieson to Ms Judy Collett, a psychologist, who treated him from July 2015.
Dr Hughes referred Mr Jamieson to Dr Harrison. On 4 February 2016, Dr Hughes noted –
His symptoms do wax and wane depending on his interaction with anything to do with his grievances with Government House. His somatic symptoms (head shaking/tremors, chest tightness, insomnia, hot flushes, sweats) continue to occur despite counselling around this. This continues to interfere with his ability to work.
He is fearful of not being able to control his workplace, and that he will experience similar harassment in another workplace.
I am concerned that it may be very difficult for George to return to his pre injury mental health state. There had been no mental health issues of concern noted in the 5+ years prior to this event.[23]
[23] T80.
On 12 February 2016, Mr Jamieson commenced treatment with Dr Harrison. Initially, this involved bi-monthly sessions. Dr Harrison diagnosed Major Depressive Episode and an Adjustment Disorder.
Mr Jamieson applied for a job at the Australian National University (the ANU). He was short-listed and interviewed. He did not get that particular job, but was offered another, which he accepted. These matters were discussed by Dr Hughes and Recovre, Mr Jamieson’s rehabilitation provider. It was in this context, on 21 March 2016, that Dr Hughes certified Mr Jamieson was fit to return to normal duties.[24]
[24] T82 folios 438-439 and T83 folios 443-444; Exhibits 19 and 20 refer.
I note that, even though Dr Hughes certified that Mr Jamieson was fit for normal duties, Mr Jamieson had not yet fully recovered from his mental illness or the ‘injury’. He remained under the treatment of Dr Harrison, Dr Hughes and Ms Collett.
He commenced a fixed term 6-month contract of employment with the ANU on 21 March 2016. That night he experienced an anxiety episode that caused him to be transported by ambulance to The Canberra Hospital.[25] I understand that Mr Jamieson thought he might have been having another heart attack, but this was not so and he attended work the following day at the ANU.
[25] T88; Exhibit 12 refers.
Mr Jamieson’s evidence is that he enjoyed the work and he felt fulfilled in this employment by the ANU. He did not have much interaction with management and his work was allocated by computer. Nevertheless, Mr Jamieson’s evidence is that he continued to experience anxiety episodes and panic attacks throughout 2016 a couple of times each week, usually at night.
On 12 May 2016, Mr Jamieson attended his final session with Ms Collett, who noted, inter alia, that he was ‘extremely happy in job’, ‘Dr Harrison has ↑ medicine’ and ‘still thinking about Govt Hse not stewing over it.’[26]
[26] Exhibit 24.

On 17 May 2016, Ms Collett reported to Dr Hughes that –
George has made great progress. He is now working again full time in a maintenance position at ANU and is enjoying his work. Many of his anxiety symptoms have gone but can still be easily triggered by reminders of his treatment in his previous place of employment. George still believes he has a score to settle but is no longer obsessed by this and accepts that at some time in the future he will be able to let go of his need to avenge the situation.
I had been seeing him under an agreement with Comcare. The approved sessions have now finished and I believe he does not require any more sessions currently. However, should he relapse, I am happy to see him again.[27]
[27] Exhibit 7.
On 23 May 2016, Dr Harrison reported to Dr Hughes, stating –
… [Mr Jamieson] presents with a history of Major Depressive Episode (MDE) that appears to have commenced around 2014 and has aggravated his underlying Adjustment Disorder with Mixed Features: depressive symptoms include panic attacks/anxiety, sleep disturbance including nightmares, feeling overwhelmed, anhedonia/motivational problems, tremors in the “back of the head like a masonry drill”, numerous evidence of physical manifestations of anxiety, i.e. headaches, sweating, light-headedness, gastrointestinal upset and diarrhoea, tremulousness; struggles with cognition, including attention and concentration and cognitive flexibility, with ruminations focusing on his prior experience of work management practices…
His main focus in assessments was the unfairness, and the inability to “accept what they have done to me … after an impeccable work performance all those years”, i.e. a sense of great injustice to his personal integrity.
On mental state he commenced with a panic attack whilst in the waiting room; and needed several sessions to put his presentation into context as, although a consistent historian, he was ruminative, fragmented in presentation and repetitive, and I needed to get a sense of how his cognition affected his judgment. Both his mood and affect were depressed, with an intense need to ‘be heard’, but problems articulating this succinctly, but he was quite appropriate and congruent; there was no evidence of movement disorder, thought disorder or psychosis.
Although on an adequate antidepressant trial (Sertraline), I was concerned that he still suffered significant MDE when I saw him, i.e. significant Major Depression, with vegetative signs, i.e. melancholia and cognitive impairment. I suggested … he initially just increase the Sertraline … and is now on Dexvanlafaxine 100mg. The Quetiapine 25mg may be adding to his sweating at night or orthostatic hypotension, but is a reasonable short-term anxiolytic…
He certainly has had a difficult upbringing, however his sense of this is ‘managing despite adversity’, and I found this concept imparted appropriately, with a sense of continuity in his presentation that suggested he has indeed assimilated abilities from that time that has [sic] served him well, i.e. a sense of personal integrity, but this contributes perhaps to underpinning why he has felt his work problems at Government House so strongly.[28]
[28] T84.
On 10 June 2016, Comcare issued an own motion reconsideration decision varying an earlier determination of Mr Jamieson’s entitlement to compensation for incapacity and creating an overpayment, stating –
… the determination of incapacity benefits for 25 February 2016 through to 27 June 2016 is no longer correct. It has been varied to allow payment of incapacity up to 20 March 2016 and to deny incapacity benefits to [sic] 21 March 2016 through to 27 June 2016.[29]
[29] T85.
It is probable that Mr Jamieson experienced stress and some agitation about Comcare as a result. At this time, he was taking the increased dose of medications prescribed by Dr Harrison in May 2016, although it appears that subsequently his medication was again increased.
On 1 August 2016 Dr Hughes noted –
saw Anne [Harrison] last week – has increased pristiq
again had increased anxiety – poor sleep around now having double tax due to commcare [sic] not ceasing payments as was told by him
has increased fear of dieing (sic) again
now 4/12 of being good before return of thyese (sic) symptoms
…[30]
[30] T90
Mr Jamieson’s pharmacy records confirm that prescriptions of Pristiq prescribed by Dr Harrison were filled over successive months.[31]
[31] Exhibit 4.
Mr Jamieson’s contract of employment with the ANU was extended to 23 December 2016.
In the latter part of 2016, Dr Harrison increased the frequency of her consultations with Mr Jamieson to monthly. This reflects Dr Harrison’s assessment of clinical need in the context of persisting disorder.
This notwithstanding, Mr Jamieson continued to work full hours and normal duties in his ANU employment.
Prior to the end of his ANU contract, management arrangements for ANU maintenance changed. The Spotless Group (Spotless) was awarded a contract for ANU maintenance. Consequently, the employment circumstances of ANU maintenance workers were affected. Mr Jamieson’s name was put forward for a maintenance position with Spotless and he was interviewed. The position involved the same duties as his ANU employment.
Mr Jamieson’s evidence is that he engaged in discussions with Spotless about a contract of employment on Friday, 2 December 2016. There was some disputation about hours of work and remuneration. It is Mr Jamieson’s evidence that this was a minor factor and he accepted terms of employment with Spotless, although he asserts that superannuation issues were not discussed and nothing was signed – ‘that was to happen on the Monday’.[32] I note in passing that no written contract of this kind is in the materials before the Tribunal. In Mr Jamieson’s account of what occurred, he was given an undertaking that the offer of employment would be kept confidential until he had informed the ANU, sometime the following week.
[32] Exhibit 13, page 34.
On the following Monday (5 December 2016), Mr Jamieson encountered a problem, which he described in the following terms –
MR JAMIESON: … on the Monday morning Spotless had already told their staff.
MEMBER: Told their staff what?
MR JAMIESON: That I was coming over to join and I would be starting some time that week, and yet what was spoken about on the Friday was the – the actual monetary figures, we hadn’t spoken about superannuation. We’d been given rough figures but not exact figures. We hadn’t signed anything over or anything like that, and that was to happen on the Monday, but on the Monday morning this Spotless crew member has approached me and said, “Which one of you is George and which one is starting with Spotless this week?” And I just went into a panic, I suppose you could say, and denied all of it because my offsider, Whitten, that’s his name, Tristan Whitten, he was standing alongside of me, and I said, “Well, I didn’t apply for the job.
…
MR JAMIESON: I hadn’t told anybody, so therefore letting anything out of the bag without me actually speaking with co-workers, management, whatever, upset me. I had a lot of problems with management at Government House and what happened, and I didn’t need the same sort of thing happening again[33]
[33] Exhibit 13, pages 34-35.
Mr Jamieson explained that this interaction upset him - he perceived that his privacy and trust had been breached by Spotless ‘management’.[34] He then refused to work for Spotless. For ease of reference, I will refer to these events as the ‘Spotless incident’.
[34] T91, folios 481-482 refers.
Mr Jamieson says he attended work for the following 3 days, after which (on 9 December 2016) he consulted his General Practitioner, who certified him unfit for work for 3 days. Of this consultation, Dr Hughes noted –
“some changes at ANU–spotless got contract – is seeing psychiatrist regularly again
is having panic attacks and anxiety increased [sic]
has 2 weeks left on contract- 23/12/16
ws [sic] offered job on new spotless team – felt wasn’t right fit
night sweats gasping for air thumping vibrations
is seeing Anne Harrison – was started on Circadin-didn’t feel good
discussed relaxation technitlans [sic].”
Thereafter, Mr Jamieson returned to work and completed the remaining term of his ANU contract which ended on 23 December 2016.
Mr Jamieson gave evidence that he experienced elevated psychological symptoms a few days later –
MR JAMIESON: After that, within two days, I would say two days, I’m trying to think back to that time, but I’d say round about two days, maybe three, I started to feel my anxieties increase, my panic disorders increase, my whole being out of order.
…
MR JAMIESON: I left – I left the decision to go to Dr Hughes until 6 January 2017 because I was hopeful of possibly getting some work, but my – my mental illness just got worse and worse, and it was a difficult decision to – to make to go back to Dr Hughes. It wasn’t something that I finished work one day and went to Dr Hughes the following day. It was two weeks before I made the decision because everything just got worse and it wasn’t because of a Spotless incident. That was long gone and gone away. My psychiatric illness had got to a point where the noises inside your head, the – the eyeballs that scream, you can’t explain what is that is happening, and what I said to the Dr – because my intention was to find work and employment and the – the – the trying, I think the trying got the better of me…[35]
[35] Transcript of proceedings, 23 August 2019, at 47-48.
Dr Hughes certified that Mr Jamieson was unfit for work on 6 January 2017.[36] This has continued to the present.
[36] T118, folios 653-654.
On 28 April 2017, Dr De Saxe, a consultant psychiatrist, examined Mr Jamieson. I note Mr Jamieson’s comments about this examination in T91. Dr De Saxe produced a report for Comcare in which he stated –
In my opinion, [Mr Jamieson] is suffering from:
1. Adjustment disorder with depression and anxiety.
2. Panic disorder.
…
My opinion is that the panic disorder [diagnosed in July 2013] has not resolved.
Similarly, the adjustment disorder remains unresolved.
…
My opinion is that the work events have interacted with personality factors, for example, the manner in which he perceived his Manager, Karen Baker to be speaking to him.
Given his background of abuse, it is likely he would have been sensitised to developing psychological or psychiatric symptoms when exposed to persons who may have dealt brusquely with him.
…
Presently the aggravation of his condition has not ceased. …
…
He apparently has a sense of injustice which is perpetuating his symptoms.
…
My impression is that his symptoms have been stabilised to some extent by the treatments.
However, the adjustment symptoms of depression and anxiety have not resolved fully and are not likely to, until the Comcare matter is competed.
…[37]
[37] T93, folios 493-496.
On 22 June 2017, Comcare determined it was not liable to pay Mr Jamieson compensation for incapacity under s 19 of the Act from 6 January 2017.[38] He requested reconsideration and, in so doing, asserted that Comcare’s actions resulted in an ‘aggravation of my mental health disorder’.[39]
[38] T108.
[39] T111 and T112.
Comcare consulted the employing agency about Mr Jamieson’s claim and reconsideration request. Mr Jamieson became agitated and upset about this, alleging a conspiracy against him.
In a reconsideration decision on 24 July 2017, for reasons relating to Mr Jamieson’s superannuation arrangements, Comcare decided to vary the determination,[40] such that Mr Jamieson was not entitled to compensation for incapacity under s 21 of the Act.
[40] T113.
On 17 August 2017, Mr Jamieson applied for review of this decision by the Tribunal.[41]
[41] T2.
On 27 November 2017, Dr Knox, a consultant psychiatrist, examined Mr Jamieson and produced a medico-legal report for his (then) solicitor. It was Dr Knox’s opinion that Mr Jamieson suffered poor mental health as a result of events in his employment by the employing agency. The doctor reported –
2. I diagnose chronic, moderate severity Generalised Anxiety Disorder. An alternative point of view is that he suffers from Chronic Adjustment Disorder with Anxiety.
The information available to me supports the conclusion that this man continues to have psychiatric injury resulting from his experiences in Government House. There may have been some minor stress surrounding the events of the Spotless job option, although I believe this is insignificant against the background of chronic, severe Anxiety that has been present since early 2014.
…
6. As noted earlier I do not believe that the events of December 2016 in respect of Spotless employment have been at all a significant aggravation of his chronic Anxiety.
There has not been any relapse of his poor health, and indeed as noted earlier his current health is a continuation of the existing health problems arising in 2014, and earlier.[42]
[42] Exhibit 3, page 3 – 4.
On 11 and 12 December 2017, Dr Saboisky examined Mr Jamieson for Comcare. The doctor produced a medico-legal report on 16 January 2018 in which he reported –
[Mr Jamieson] has symptoms of anxiety currently. I believe his primary psychiatric diagnosis is that of a personality disorder with mixed features (obsessive and paranoid).
…
I do not believe this personality disorder was caused by his employment rather it is deeply ingrained and long standing and related to his unfortunate traumatic childhood…
…
From the clinical file of Dr Ann Harrison he appears to have had a major depression during the time she was seeing him… There was a mixture of depression and anxiety symptomatology.
…
I think he suffers from a personality disorder with paranoid and obsessive features as well as concomitant anxiety related specifically to Comcare related matters.
…
I think it is reasonable to say that late March 2014 he was experiencing symptoms of an adjustment disorder.
…
I believe that his psychiatric condition was contributed to by his employment at Government House in so much as he failed to obtain employment that he felt was rightfully his. He worked successfully at ANU and the separation from that employment and the refusal to take on employment by Spotless is in my view not causally related to his employment with Government House.
…
His current diagnosed condition of adjustment disorder is as a result of losing his contract with ANU and his reactivation of his Comcare claim.
…
He is, by virtue of his psychiatric condition, fit for work but because of his interpersonal repertoire it may be difficult to work in an environment which is viewed as not being supportive and collaborative.[43]
[43] Exhibit 14, pages 7, 8, 9 and 10.
On 8 October 2018, Dr Saboisky produced a supplementary report for Comcare, in which he reported –
I do not know whether he currently suffers from an identifiable psychiatric disorder. When I saw him I thought he suffered from a personality disorder with mixed features, obsessive and paranoid. I noted that he did suffer from anxiety and some depression which were inextricably linked to his sense of frustrated entitlement and injustice. It would be indeed surprising if he wasn’t currently complaining of the same symptomatology.
…
It would be indeed surprising if he did not have symptoms of a personality disorder well before his employment with Government House. He does not provide that history nor is there any evidence in the file. It is the nature of personality disorders that they are life long conditions.
…
I do not know what he currently suffers from, but when I saw him I felt that his primary diagnosis was a personality disorder and anxiety symptoms were generally related to his belief that he had been treated inequitably and unjustly by his previous employer.
…
While Comcare accepted he had a psychiatric condition it is my view that a diagnosis of an adjustment disorder cannot be made while he suffers from an underlying personality disorder.
…
I believe his diagnosed condition was primarily contributed to by his personality disorder and his failure to achieve a benefit.
…
I do not think there was a diagnosed condition as a result of an employee of Spotless approaching him to discuss his employment contract in or around December 2016…. He clearly became anxious because he had a sudden sense that he could not trust his employer even though his employment was not going to be jeopardised.
…
His refusal to accept a job with Spotless in December 2016 in my view overtook any lasting incapacity arising from his accepted psychiatric condition. If there was not a change in the contract I suspect he would have continued his employment.[44]
[44] Exhibit 15, pages 1, 2, 3, 4 and 5.
In a further supplementary report on 22 May 2019,[45] Dr Saboisky adhered to his previously reported opinions.
[45] Exhibit 16.
ISSUES
The issue to be decided is whether Mr Jamieson is entitled to compensation for incapacity as of 6 January 2017. For such an entitlement to exist, it must be established that the incapacity for work under claim is as a result of an ‘injury’ under the Act for which Comcare is liable.
Comcare also raised issues relating to the credibility and reliability of Mr Jamieson’s evidence. I will deal with this issue first.
CREDIT
As I comprehend Comcare’s submission, there are two aspects to this. Firstly, Comcare suggests that Mr Jamieson’s advocacy under cross-examination suggests an unwillingness to provide full and frank evidence in response to questions put to him in respect of matters relevant to his case. And secondly, Comcare argues that Mr Jamieson’s recollection of past events is not reliable as it is tainted by his agenda, as well as by subsequent events and processes over time.
When considering such matters and making related findings of a factual nature, the impressionistic nature of a credibility assessment should take into account all of the evidence,[46] and it needs to be tempered by principled assessment. In this regard, I note the general observations of Beach J in BEL16 v Minister for Home Affairs[47] at [16]-[26]. While these observations are directed to credibility in a migration legislation context, they are nonetheless apposite.
[46]SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562, at [44]-[45].
[47] [2019] FCA 1678.
With regard to the advocacy point, Comcare referred to Oliver v Comcare (Compensation)[48] (Oliver) in seeking support for the proposition that Mr Jamieson’s advocacy is inconsistent with him being accepted as a credible witness. It is quite clear to me that Mr Jamieson, like so many self-represented parties in Tribunal proceedings, struggled to separate advocacy from evidence. On many occasions, he cavilled with questions being put to him during cross-examination, and he sought to engage in argument or discussion.
[48] [2019] AATA 888 at [104].
Mr Jamieson’s advocacy, and his difficulty differentiating advocacy from evidence concerning relevant facts, obfuscated his evidence.
In such cases, as occurred in Oliver’s case, it is for the Tribunal to disentangle evidence from advocacy or argument, and to evaluate the extent to which the evidence is tailored or tainted by the advocacy, such that the weight it should be given may be affected. This is no easy task as Mr Jamieson’s evidence is affected by other considerations that are touched on by Comcare’s second point, namely that his evidence is tainted by his agenda and the vicissitudes of memory and time.
In my assessment, the evidence Mr Jamieson gave is affected by his psychiatric condition: his memory, and his evidence, is coloured by belief, intruded upon by the effects of illness and occluded by the passage of time. It is quite clear to me that Mr Jamieson’s beliefs about what occurred at Government House are the subject of rumination amplified by psychiatric illness.
As Leggatt J observed in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor[49] (Gestmin), memory is fallible and:
[e]xternal information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection.[50]
This is apparent in Mr Jamieson’s case. Nevertheless, I do not propose to discount his evidence entirely on grounds of unreliability and will assess the weight it should be given against contemporaneous materials in the documentary record. Furthermore, it appears to me that Mr Jamieson’s evidence reveals aspects of his personality. In this regard, it is apposite to recall Leggatt J’s observation in Gestmin’s case at [22] –
This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
[49] [2013] EWHC 3560.
[50] Ibid, at [17].

Furthermore on this point, bearing in mind what Kirby J said in CSR Ltd v Della Maddalena,[51] I note the remarks of the majority in Fox v Percy,[52] regarding principles relevant to such similar considerations (albeit in a different legal setting) and encouraging judges to -
… limit reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.[53]
[51] [2006] HCA 1, per Kirby J at [23]-[24].
[52] [2003] HCA 22.
[53] [2003] HCA 22, per Gleeson CJ, Gummow and Kirby JJ, at [30]-[31].
Mr Jamieson’s propensity to ruminate over the way he was treated at Government House has a psychiatric character. This is established by medical evidence given by Dr Harrison, Dr Saboisky and Ms Collett, and it is apparent in his evidence and in voluminous documents he has given the Tribunal. In these circumstances, it is probable that Mr Jamieson’s strong negative focus on the way he believes he was treated at Government House colours his evidence, accentuating a negative view of Government House’s role in his ‘injury’ and diminishing or dismissing other unrelated factors as insignificant or irrelevant.
In view of this, Mr Jamieson’s evidence must be treated with some caution and where it is inconsistent with reliable documentary records, or where it is not supported or corroborated, little weight can be given.
COMPENSATION FOR INCAPACITY
Mr Jamieson made extensive and wide-ranging submissions, some of which are convoluted, difficult to follow and of questionable relevance to the matters I must decide. Nevertheless, doing the best with his submissions and the voluminous written materials he has given the Tribunal, the thrust of his arguments are plain enough. He cavils with Dr Saboisky’s diagnosis and assertions related to personality disorder of long-standing. He asserts that Dr Saboisky is wrong and his opinion should be rejected.
Mr Jamieson argues very strongly that what occurred in his employment at Government House caused him substantial, enduring harm. He argues that he was badly treated by the employing agency and the resulting injury has continued to affect him ever since. In Mr Jamieson’s submission, the effects of the injury he sustained have not resolved or gone away. He says –
There is a need to understand the ‘WHOLE TRUTH’ about my psychiatric injuries and the LONG-TERM effect that it has had on me… These were the actual causes of my ‘Incapacity for Work’ for the period 6^th January 2017 to 30^th June 2018 as it was the ‘continuation of an on-going psychiatric injury/illness’ sustained and identified as having a deemed date of injury by Comcare as the 19^th March 2014[54]
[54] Exhibit 29, Applicant’s Written Submissions, 15 October 2019, at 15.
Mr Jamieson cavils with the proposition that the Spotless incident in December 2016 was the cause of any incapacity thereafter – ‘the Spotless issue of employment was unacceptable due to their inadequate procedures of safety and protection for a person with my on-going FRAGILE personality and psychiatric injury/illness’.[55] He asserts that he continued to work in his ANU employment after this incident occurred. He says –
I do not understand what happened to me, I do suffer from memory loss and cognitive issues, words come and go inside my head, however, I strain to find what has triggered what I believe to be a RELAPSE of some kind.
This did NOT happen during my work with the ANU as I attended work until the end of contract.
This was NOT a SPOTLESS issue, as I did NOT take time OFF work from the ANU until 2 days AFTER the Spotless employee encounter.
Also, 4 days later when I saw my treating psychiatrist Dr Harrison and Dr Hughes on the 9^th December 2016 neither one of these Doctors saw a change for the worse, or indicated that should change medication, or have time OFF work to enable a RECOVERY.
However, I did request a medical certificate from Dr Hughes to cover 3 days off work PRIOR to seeing Dr Hughes, as this would cover my SICK days from the ANU which could then be processed by the Human Resources staff at the ANU
The only contributing factor that I can offer for the ‘Incapacity for work’ is that I suffered a RELAPSE, sometime after the 23^rd December 2016 and prior to seeing Dr Hughes on the 6^th January 2017[56]
[55] Ibid, page 59.
[56] Ibid, page 17.
This notwithstanding, Mr Jamieson argues that the incapacitating effects of his injury were not crowded out by other factors or by a new intervening cause of incapacity. He asserts that –
… my on-going psychiatric injury/illness was under ‘extreme’ pressure, and I was NOT RESPONDING well to various psychotropic medications throughout my working period at the ANU in 2016.
The continuation of medical appointments with my GP Dr Hughes and my psychiatrist Dr Harrison and the various medications and quantities through 2016/2017 to arrest my downhill spiral, is proof positive of my not being CROWDED OUT or a Novus Actus interveniens...[57]
[57] Ibid, page 59.
Mr Jamieson maintains that Comcare’s decision to refuse his compensation claim for incapacity resulting from his accepted injury is wrong and the decision should be set aside.
Comcare asserts that Mr Jamieson’s incapacity for work as of and after 6 January 2017 is solely caused by the Spotless incident and his subsequent interactions with Comcare. In Comcare’s submission, the expert evidence given orally by Dr Saboisky and Dr Harrison establishes that the Spotless incident was the ‘pivotal event, which caused [the applicant] to become so symptomatic that he couldn’t continue to work’.[58] This incident, Comcare says, entirely displaced and overtook any incapacity for work that may have been attributable to Mr Jamieson’s accepted injury. Furthermore, Comcare argues that any residual incapacity for work or increased susceptibility to experience psychiatric symptoms from that injury ‘were only very minor contextual factors in what occurred in the Spotless incident, and they were not operative or effective factors leading to incapacity.’[59]
[58] Respondent’s written submissions, 1 November 2019, at [12]; Transcript of proceedings, 23 August 2019 at 169, lines 19-34.
[59] Respondent’s written submissions, 1 November 2019, at [16].
Insofar as Mr Jamieson asserts various facts and personally attests to the cause of the incapacity he experienced after 6 January 2017, Comcare points out that these are matters for expert evidence – ‘there is a need in this case to fully, and/or objectively, understand the nature and effects of the disorder under claim, such that reliance on independent expert evidence is essential.’[60] Comcare pithily observes that Mr Jamieson cannot diagnose or properly assess himself.
[60] Ibid, at [33.2].
Comcare argues, furthermore, that Mr Jamieson had functionally recovered by March 2016, when he commenced work at the ANU. Thereafter, he experienced occasional incapacity for work related to changes in medications prescribed by Dr Harrison, and as of 6 January 2017, the incapacity for work claimed was not as a result of his accepted ‘injury’.
In Comcare’s submission, much turns on expert evidence that Mr Jamieson has a latent trait of mistrust from childhood which has been amplified by experience and is triggered by or latches on to environmental factors from time to time. Comcare asserts that the trait was triggered by Mr Jamieson’s ‘heart attack, his hypertension, his employment circumstances at Government House, the Spotless incident, the rejection of liability by Comcare, and his cross-examination by counsel for Comcare at the hearing on 22 August 2019’[61]. This trait, so the argument goes, is akin to a ‘sick mind’ (in the sense used by Sweeney and Woodward JJ in Australian Telecommunications Commission v Tzikas[62] (Tzikas) latching onto factors or events ‘but not in such a way as to add to existing incapacity’,[63] in relation to which Mr Jamieson’s Commonwealth employment was ‘an inert focus’ (in the sense used by Perram J in Dean v Australian Postal Corporation[64](Dean) when viewed through the prism of Mr Jamieson’s childhood experiences.[65] Comcare argues that the triggering of Mr Jamieson’s trait by factors he may find offensive from time to time ‘does not add in any way to existing incapacity which arises only from, what the experts described as, a latent “trait” that may express itself from time to time in response to certain environmental factors, despite any “injury” he might previously have suffered.’[66]
[61] Ibid, at [20].
[62] (1985) 5 AAR 173 at 195.
[63] Respondent’s written submissions, 1 November 2019, at [21.1].
[64] [2010] FCA 680 at [35]-[39].
[65] Respondent’s written submissions, 1 November 2019, at [36]-[37].
[66] Ibid, at [21.4].
Relying on Dr Saboisky’s reports in Exhibits 14 and 15, and considering the weekly assessment that must be applied when determining Mr Jamieson’s claim for incapacity compensation from 6 January 2017, Comcare asserts that there was no persisting causal nexus between any incapacity for work and Mr Jamieson’s accepted ‘injury’. In sharpening the point of this submission, Comcare draws support from a passage of the Full Federal Court judgement in Prain v Comcare[67](Prain) for the proposition that Mr Jamieson ‘did not presently suffer from an “injury” from which an incapacity for work actually, or could have, resulted at all materials times.’[68]
[67] [2017] FCAFC 143 at [79]-[90].
[68] Respondent’s written submissions, 1 November 2019, at [25].
Comcare informed me that it was not arguing against its original acceptance of liability for an ‘injury’ in 2014, and it was not urging the Tribunal to make any contrary findings of fact in the sense discussed by the Full Court in Telstra Corporation Ltd vHannaford (Hannaford).[69] Rather, the proposition contended for is that, from 6 January 2017 onwards, the contribution made by Mr Jamieson’s Government House employment to his accepted ‘injury’ is not to a significant degree. As I comprehend Comcare’s submissions on this point, the relative contribution made by Mr Jamieson’s Government House employment to the adjustment disorder he experienced in 2014 diminished in significance, or was overtaken or supplanted by other contributory causes, such that it was crowded out or pushed into the background to the extent that it was no longer substantially more than material or ‘to a significant degree’. The sharp point of this submission is that Mr Jamieson’s ‘injury’ came to an end prior to 6 January 2017, even though his psychiatric ailment may have persisted to some degree.
[69] [2006] FCAFC 87.
Comcare argues that, from 6 January 2017 onwards, the contribution made by Mr Jamieson’s Government House employment to his accepted ‘injury’ is not to a significant degree. Comcare asserts that, from this date, the incapacity for work Mr Jamieson claimed is not as a result of the accepted ‘injury’, rather it is the result of the Spotless incident and other factors, including aspects of Mr Jamieson’s personality. It is for these reasons Comcare argues he is not entitled to payment of compensation for incapacity for work thenceforth.
The matter is to be decided under s 21 of the Act, which relevantly provides –
(1) Compensation payable to an employee who is incapacitated for work as a result of an injury is determined in accordance with this section if:
(a) the employee is retired from his or her employment (whether the employee retired voluntarily or was compulsorily retired); and
(b) the employee receives a lump sum benefit under a superannuation scheme as a result of the employee’s retirement.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3) The amount of compensation is the amount worked out using this formula:
Amount of compensation – [Weekly interest on the lump sum + 5% of the employee’s normal weekly earnings]
where:
amount of compensation means the amount of compensation that would have been payable to the employee for a week if:
(a) section 19, other than subsection 19(6), had applied to the employee; and
(b) in the case of an employee who was not a member of the Defence Force immediately before retirement—the week were a week referred to in subsection 19(3).
weekly interest on the lump sum means the amount worked out by:
(a) multiplying the superannuation amount in relation to the lump sum benefit received by the employee by the rate specified in an instrument made under subsection (5); and
(b) dividing the result of paragraph (a) by 52.
…
Aside from provisions relating to calculation and quantum of compensation, three important elements of Comcare’s liability to pay compensation under this section require careful consideration.
Firstly, compensation is payable in respect of an ‘injury’. In this context, ‘injury’ carries the meaning given by s 5A, namely –
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
There is no controversy that Mr Jamieson suffered an ‘injury’ as of 19 March 2014 for which Comcare accepted liability to pay him compensation under s 14 of the Act. There is also no controversy that the ‘injury’ is in the form of a ‘disease’ within the meaning given by s 5B, namely –
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
I note that neither party argued that the work-related adjustment disorder Mr Jamieson experienced is within the meaning of ‘an injury (other than a disease)’.
Secondly, for compensation to be payable under s 21 of the Act, the claimant must be incapacitated for work ‘as a result of’ an ‘injury’.
The ‘as a result of’ causal test is applied between the claimed ‘incapacity for work’ and an ‘injury’. The test involves three elements. The first is the existence and precise nature of the ‘injury’ that is said to have caused the claimed incapacity for work. The second is the nature and extent of the claimed incapacity for work. The phrase ‘incapacity for work’ is explicated by s 4(9) of the Act, in the following terms –
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
And the third question is whether there is some causal connection[70] between the claimed incapacity for work and the ‘injury’, such that the ‘injury’ is a material or operative factor in causing the incapacity for work and the incapacity for work is a resultant effect of the ‘injury’. These are matters of fact and degree to be determined in the particular circumstances of each case by reference to probative evidence, including the evidence of experts where appropriate.
[70] Lim v Comcare [2016] FCA 709 at [59].
Thirdly, Comcare’s liability to pay compensation under s 21 of the Act is to be assessed and determined on a weekly basis.
The assessment is not simply one of calculus and quantum. It also requires a decision maker to be satisfied that the requisite causal nexus between the claimed incapacity and the accepted ‘injury’ persists during each week of the claimed incapacity for work. This does not require persistence of the ‘injury’ or contemporaneity between the ‘injury’ and the claimed incapacity – the test to be applied is primarily causal rather than temporal. Where a causal link between the claimed incapacity and the ‘injury’ is not established in a particular week or weeks, or a previously established causal connexion is broken or intruded upon and crowded out by other events or circumstances to the extent that the incapacity can no longer truly be said to be ‘as a result of’ the ‘injury’, compensation will not be payable, as occurred in Prain’s case. Nevertheless, it does not follow and it should not be assumed that a claimant will not be entitled to payment of compensation for incapacity in circumstances where the ‘injury’ has resolved but its effects persist. In those circumstances, the question for a decision maker is whether the incapacity claimed is as a result of the previous ‘injury’.
In consideration of these factors and the submissions of the parties, four key questions crystallise for determination –
(a)What is the precise nature of the ‘injury’ Mr Jamieson sustained in 2014?
(b)As of 6 January 2017, did the ‘injury’ persist as a ‘disease’?
(c)Did Mr Jamieson have an incapacity for work as a result of the ‘injury’ on and after 6 January 2017?
(d)What is Mr Jamieson’s entitlement to compensation in respect of incapacity for work on and after 6 January 2017?
Nature of injury
It is an historical fact that Comcare accepted liability for an ‘injury’ in the form of an ‘aggravation of adjustment reaction with mixed emotional features’ to which his Government House employment contributed to a significant degree.[71] It appears that this description was derived using the International Classification of Diseases. Nevertheless, a description of this kind is not sufficient to enable a detailed understanding of the ‘injury’ and there is some controversy over this diagnosis.
[71] T27, folio 192.
The evidence of Dr Harrison, Dr Oelrichs, Dr De Saxe, Dr Knox, Dr Hughes, Ms Collett and Ms Fisher, suggests that Mr Jamieson suffered from an adjustment disorder with mixed emotional features that arose in the context of his previous employment at Government House in 2013 and 2014. On 5 September 2014, Dr Oelrichs diagnosed an ‘Adjustment Disorder with anxiety and depressed mood’.[72] On 4 February 2016, Dr Hughes reported ‘severe anxiety and depression’.[73] On 23 May 2016, Dr Harrison reported that Mr Jamieson ‘presents with a history of Major Depressive Episode (MDE) that appears to have commenced around 2014 and has aggravated his underlying Adjustment Disorder with Mixed Features’.[74] Dr De Saxe concurred with Dr Harrison and, on 12 May 2017, reported a diagnosis of ‘Adjustment disorder with depression and anxiety and Panic Disorder’.[75] On 27 November 2017, Dr Knox diagnosed a Generalised Anxiety Disorder or a chronic Adjustment Disorder with Anxiety.[76]
[72] T25, folio 184.
[73] T80, folio 431.
[74] T84, folio 445.
[75] T93, folio 493.
[76] Exhibit 3, page 3.
Dr Saboisky presented differing opinions in reports he provided to Comcare: on the one hand the doctor diagnosed a ‘personality disorder’ and reported ‘I think it is reasonable to say that late March 2014 he was experiencing symptoms of an adjustment disorder’,[77] and on the other hand, he reported ‘it is my view that a diagnosis of an adjustment disorder cannot be made while he suffers from an underlying personality disorder’. [78]
[77] Ibid, page 8.
[78] Ibid, page 3.

In order to understand aspects of Dr Saboisky’s reports on matters of diagnosis, it is necessary to closely examine what he said. Dr Saboisky reported the following comments:
(a)on 16 January 2018 –
I think he suffers from a personality disorder with paranoid and obsessive features as well as concomitant anxiety related specifically to Comcare related matters.
I think it is reasonable to say that late March 2014 he was experiencing symptoms of an adjustment disorder.
The fact of the matter is he works successfully and therefore his adjustment disorder according to Dr Harrison’s notes his adjustment disorder [sic]. Therefore I think it is reasonable to conclude his symptomatology in so much as it was impacting on his work capacity was sub syndromal during his employment with the ANU.
At the end of his employment with the ANU he secured a transfer to Spotless and did not take up the opportunity because he felt that there had been a breach of his privacy, and therefore he could not trust his employer. I believe this is a result of his paranoid personality rather than the adjustment disorder, per se. He attributes it to his employment at Government House but for reasons outlined earlier in this report I think it is in keeping with a deeply ingrained personality disorder which obviously had been amplified by his employment. Since he ceased working at the ANU he has had intermittent mild anxiety symptoms which are principally related to his sense of frustrated entitlement and the grudge he holds against Government House.
His current diagnosed condition of adjustment disorder is as a result of losing his contract with ANU and his reactivation of his Comcare claim.[79]
(b)On 8 October 2018 –
I do not know whether he currently suffers from an identifiable psychiatric disorder. When I saw him I thought he suffered from a personality disorder with mixed features, obsessive and paranoid. I noted that he did suffer from anxiety and some depression which were inextricably linked to his sense of frustrated entitlement and injustice. It would be indeed surprising if he wasn’t currently complaining of the same symptomatology.
I find it hard to believe that the change of contract at ANU in December 2016 did not adversely affect his mental state. In the history presented to me he continued to have mild anxiety symptoms and the chronic sense of frustrated entitlement and the grudge he holds against Government House.
While Comcare accepted he had a psychiatric condition it is my view that a diagnosis of an adjustment disorder cannot be made while he suffers from an underlying personality disorder.
When he was diagnosed DSM IV was the recognised diagnostic classifying system. An adjustment disorder diagnosis could not be made if Criteria C was met, i.e. “the stress related disturbance does not meet the criteria for another specific Axis 1 disorder and is not merely an exacerbation of a pre-existing Axis 1 or an Axis 2 disorder.
Because of his personality disorder he continues to have a chronic sense of frustrated entitlement and injustice at the way he perceives he was treated by his employer at Government House.
I do not think there was a diagnosed condition as a result of an employee of Spotless approaching him to discuss his employment contract in or around December 2016… He clearly became anxious because he had a sudden sense that he could not trust his employer even though his employment was not going to be jeopardised.[80]
[79] Exhibit 14, page 8 – 9.
[80] Exhibit 15, page 1 - 4.
Notwithstanding that Mr Jamieson may have experienced stress or anxiety from time to time, such as Dr Saboisky’s reference to Mr Jamieson experiencing weird “worries – new relationship in the middle of stresses” in July 2004,[81] the present evidence does not establish that Mr Jamieson has a history of psychiatric illness or symptoms prior to 2013, or that he has a history of symptomatic hypervigilance or hypersensitivity to mistrust. I note that Dr Hughes reported ‘there have been no mental health issues of concern noted in the 5+ years prior to this event.’[82]
[81] Ibid, page 1.
[82] T80, folio 431.
On this material, I am satisfied that Mr Jamieson did not exhibit signs or symptoms that were outside the boundaries of normal functioning and behaviour such that it could properly be said he suffered a mental illness prior to 2013.
It appears that Dr Saboisky was cognisant of Mr Jamieson’s history, about which he reported –
It would be indeed surprising if he did not have symptoms of a personality disorder well before his employment with Government House. He does not provide that history nor is there any evidence in the file. It is in the nature of personality disorder that they are life long conditions.[83]
[83] Exhibit 15, page 2.
In those circumstances and absent evidence of any previous psychiatric disturbance or life-long personality disorder, the basis on which the doctor formulated the reported personality disorder diagnosis, which requires an evaluation of Mr Jamieson’s long-term functioning and behaviour,[84] is not entirely clear. In the circumstances, the diagnosis appears to be somewhat speculative and it must be treated with caution. Furthermore, in making this diagnosis, Dr Saboisky is alone.
[84] Ibid, page 686.
Dr Saboisky expressly accepted the existence of an adjustment disorder but also posed a barrier to making such a diagnosis in the presence of an underlying personality disorder. His evidence on these points is difficult to resolve. Considering the Diagnostic and Statistical Manual of Mental Disorder (DSM) to which Dr Saboisky expressly referred when explaining why, in his opinion, an adjustment disorder diagnosis could not be made, it is quite clear that personality disorders are Axis 2 disorders.[85] Why this would preclude diagnosis of an adjustment disorder under the multi-axial formulation set out in the DSM is not established.
[85] Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, page 29.
Nevertheless, I note that Dr Saboisky did not cling to the diagnosis of a personality disorder and, in his oral evidence at hearing, referred to Mr Jamieson having an adjustment disorder and a personality vulnerability or latent trait. As will appear, this is a matter of central importance. For this reason, it is not necessary to further examine the rather confusing aspects of Dr Saboisky’s reports relating to diagnosis and aetiology.
To my mind, where expert psychiatric opinions diverge in this case, Mr Jamieson’s treating psychiatrist, Dr Harrison, is in the best position to make a thorough assessment of his psychiatric condition, and her evidence on these matters is preferred. Dr Saboisky examined Mr Jamieson on one occasion only and, while his expertise is not in question, as he indicated in his oral evidence, there are limits to medico-legal assessment.
On balance, I am satisfied that Mr Jamieson sustained a Major Depressive Episode and an adjustment disorder with mixed features.
In relation to the onset and contributory causal factors of this disorder, on the evidence of Dr Harrison, Dr Saboisky, Dr Oelrichs, Dr De Saxe, Dr Knox, Dr Hughes and Ms Fisher, it is likely that the disorder was clinically apparent on 19 March 2014 and causal contributory factors at that time included –
(a)circumstances in Mr Jamieson’s Government House employment from in or about April 2013 to 19 March 2014 (at least);
(b)hypertension;
(c)the myocardial infarct he experienced on 13 October 2013;
(d)fear of another heart attack; and
(e)personality vulnerabilities or traits from childhood.
With regard to employment factors, Mr Jamieson’s account of stressors includes health and safety concerns, interpersonal issues and concerns relating to his contract of employment prior to his heart attack.[86] Consistent with this, on 19 October 2013, Dr Hughes noted ‘recent work stress that lead to more smoking and feels this potentially caused AMI’.[87] Mr Jamieson also complained of subsequent further issues relating to grievances about the manner in which he was treated, perceived harassment and injustice, including concerns about his contract of employment, his failure to be offered a position to which he thought he was entitled and his subsequent redundancy. This is consistent with the report Dr Hughes gave Comcare on 27 August 2014.[88]
[86] T9, folios 18-21; T10, folios 30-33; T20, folios 117-121;T20a, folios 132-139; T4 refers.
[87] T19, folio 107.
[88] T22.
Dr De Saxe confirmed Dr Hughes’ assessment.[89] He also reported –
Regarding other psychological conditions, according to Mr Jamieson’s history, he has suffered abuse and anxiety earlier in his life, which in my opinion are likely to have acted as predisposing factors for the work-related adjustment disorder.
…
My opinion is that work events have interacted with personality factors, for example, the manner in which he perceived his manager, Karen Baker, to be speaking to him.
Given his background of abuse, it is likely that he would have been sensitised to developing psychological or psychiatric symptoms when exposed to persons who may have dealt brusquely with him.[90]
[89] T93, folio 492.
[90] Ibid, folio 495.
I note that this assessment of personality factors is consistent with and supported by the oral evidence of Dr Harrison and Dr Saboisky in relation to Mr Jamieson’s personality vulnerability or latent trait relating to mistrust, which I accept.
Dr Knox reported that Mr Jamieson’s psychiatric illness ‘had been caused in the Government House environment over a number of years, culminating in 2014’.[91]
[91] Exhibit 3, page 4.
Dr Oelrichs reported that Mr Jamieson had been ‘very stressed within the workplace and had felt intimidated, harassed and bullied’ in relation to health and safety issues at work before he had his heart attack on 13 October 2013,[92] and ‘it is possible that Mr Jamieson has developed an adjustment disorder with anxiety and depressed mood following his myocardial infarct in October 2013’.[93] In Dr Oelrichs’ opinion, Mr Jamieson ‘first developed an adjustment disorder with anxiety and depressed mood following events of 19 March 2014’, and ‘this is likely to have been a recurrence of the pre-existing adjustment disorder’.[94] In a subsequent report, Dr Oelrichs reported that:
Mr Jamieson had first developed symptoms of an adjustment disorder in late 2013 following a myocardial infarct however this had become clinically identifiable to his general practitioner in March 2014 and following months.[95]
[92] T25, folio 180; folio 184 refers.
[93] T25, folio185.
[94] Ibid.
[95] T40, folio 278.
Dr Hughes’ evidence supports this conclusion.[96]
[96] T22; T19, folio 109 refers.
On this evidence, I am satisfied that events and circumstances in Mr Jamieson’s Government House employment prior to and after the heart attack Mr Jamieson experienced on 13 October 2013 causally contributed to the adjustment disorder that was first diagnosed in March 2014.
With regard to causation, in their oral evidence, Dr Harrison and Dr Saboisky agreed, and I accept, that four main factors contributed to Mr Jamieson’s adjustment disorder, namely Mr Jamieson’s heart attack, hypertension, employment at Government House and fear of having another heart attack.[97] I note that Dr Harrison and Dr Saboisky did not expressly include Mr Jamieson’s personality vulnerability or latent trait relating to mistrust as a causal factor in the adjustment disorder,[98] although aspects of their oral evidence, and Dr De Saxe’s report, point to such a conclusion.
[97] Exhibits 26 and 27.
[98] See Exhibits 26 and 27.
In this context, Dr Harrison and Dr Saboisky explained this and the mechanism of employment contribution in the following ways –
DR SABOISKY: …I think that his early childhood experienced [sic] informed his reaction to how he responded at Government House. So he had a very traumatic childhood which left him, I think, with essentially pervasive vulnerability, mistrust, fear of authority figures, fear of power imbalances, fear of loss. In the Government House employment, particularly when it came to his sense of entitlement, he lost trust in those who were meant to care for him…
…
… I think his early childhood trauma left him with a personal legacy, an enduring pattern of thinking, feeling and behaviour.
…
It becomes a disorder if it causes impairment for work or in relationships. So in terms of work we have two examples, Spotless and Government House, where it has caused profound impairment. He’s reacted very adversely and become very symptomatic because of the perception that he was being or could be poorly treated.[99]
DR HARRISON: … So, I don’t think that trauma per se causes personality disorder. It makes a vulnerability and whether the traumatic incidents have particular salience to the person is how they express the trauma. So, it might look like nothing to us but it might actually be excruciating to them because it’s the particular nub of what their trauma is about, like the mistrust that people aren’t going to – you’re helpless, you can’t get anybody to listen to you when you’re complaining about something, therefore you fear that you won’t be able to fix the situation if you like. Certainly that’s represented in his earlier trauma that he was – whilst he was with a set of (indistinct) but was sick beforehand, then grandpa died, people would – he would then have those losses, okay, so he couldn’t trust that there will be someone to go to. He, despite any adversity, functions really well in his life and that’s, again, the personality disorder because you’d expect it to be affecting all areas of his life, pervasive, and you’d expect it to be over time, you know, during the injuring part of it, like the whole life, but he, despite the adversity, felt that he was essentially bulletproof until 2013 or so.
MEMBER: Sorry, just in terms of trying to grapple with that, are you suggesting that the childhood experience gave rise to a vulnerability and the vulnerability did not rise to the level of a pattern that might [be] akin to a disorder but, nevertheless, was something able to be triggered by something that, in a different person, may have a very different effect?
DR HARRISON: If they were more resilient, and they didn’t have the vulnerability, yes, they might not become unwell or sick or unable to cope with what’s going on and evidence things like anxiety. It’s sort of like a – you get to the pinpoint and then you can manage during this point but if you get too overwhelmed by it, or it’s particular salient or important issue to you, not necessarily anybody, that like your integrity is undermined, for instance, by the incidents at Government House but then that becomes the important trigger, if you like, that then sends them over the edge.
MEMBER: All right. Thank you for that. Dr Saboisky is that consistent with what you’re saying, but you seem to go a step further, I think, do you?
DR SABOISKY: Well, it’s very hard to make an evaluation of a person longitudinally in a medicolegal context because attribution becomes limited [by] biography and I think you would need to get evidence from his first wife and other work colleagues, and so on, to know whether, in fact, he had any injuring symptoms of a personality disorder but he reacted like he had a personality disorder from my perspective and the other thing that I think is very important is that he viewed Government House as a family, as some – as an organisation that looked after him and I think he worked very successfully until there was a change in management, then a perception that he wouldn’t be looked after and then that, in fact, was borne out with the passage of time because after his heart attack he was deemed as probably no longer necessary for their requirements. That was the way he viewed it and then he perceived that there was a man being groomed for the job and his perception was correct and, in fact, he felt very devalued and rejected and abandoned by them.
MEMBER: And those are things, I can tell from you response, that you agree upon?
DR SABOISKY: Yes, yes.[100]
[99] Transcript of proceedings, 23 August 2019, at 151.
[100] Transcript of proceedings, 23 August 2019, at 152 -153.
Considering this evidence, I am satisfied that Mr Jamieson’s previously existing personality vulnerability or trait was a predisposing factor which might affect his mental health.
When determining if employment contributed to Mr Jamieson’s psychiatric ailment, all causal factors and matters set out in s 5B(2) of the Act may (or shall[101]) be taken into account.
[101] Comcare v Power [2015] FCA 1502 at [94].
Despite the personality vulnerabilities and latent trait Dr Saboisky and Dr Harrison (and Dr De Saxe) identified, Mr Jamieson was employed at Government House for many years without incident. He experienced a myocardial infarction in October 2013. He had hypertension. He feared having another heart attack and dying. These are all matters that weigh in the balance when assessing if events and circumstances in Mr Jamieson’s previous employment contributed to Mr Jamieson’s adjustment disorder ailment to a significant degree. There is no dispute that they did, and in my assessment of the materials before the Tribunal that is correct.
Taking these matters into account, on balance, the present materials establish that the events and circumstances of Mr Jamieson’s employment from April 2013 to March 2014, before and after his heart attack in October 2013, triggered a psychiatric reaction within the meaning of ‘ailment’ and, to use Dr Harrison’s words, sent him over the edge. He was exposed to a state of affairs to which he would not otherwise have been exposed, and this exposure was a significant factor in causing the psychiatric reaction that ensued. While his personality traits and vulnerabilities provided a predispositional context and the myocardial infarction, hypertension and fear of recurrence provoked a psychological response, it was the actual events and circumstances of his employment that triggered the excessive and inappropriate reaction to which Dr Saboisky referred.
At this point, it is important to note that, while Mr Jamieson’s accepted ‘injury’ was in the form of an adjustment disorder ailment or an aggravation of an adjustment disorder, to which his employment contributed to a significant degree, the ‘injury’ has another psychiatric feature about which Dr Harrison and Dr Saboisky gave oral evidence. Both doctors agreed and I accept that, by triggering Mr Jamieson’s underlying personality vulnerability or latent trait relating to mistrust, the events and circumstances of his Government House employment increased his vulnerability and sensitisation to mistrust, rendering him more vulnerable or susceptible to further reactive occurrences and symptoms. The doctors described this in the following ways –
DR HARRISON: I think the trauma at Government House that was pre-heart attack …
DR HARRISON: … and post-heart attack, probably compounded it.
MEMBER: Right.
DR HARRISON: But the pre-heart attack, he was – had his trust so undermined that that became part of his story, if you like, of the trauma (indistinct) that he was going through. And if he gets something like a whisper of a wind, if you like, later on that has a sense of the same thing, it feels like a gale to them, so they can become quite symptomatic again, even though it might be a much reduced (indistinct) or perceived, but it may appear to be almost nothing but it’s like it’s the same again potentially, they can go back to feeling almost the same symptomatically as they were with the original trauma at Government House.[102]
…DR HARRISON: I’m trying to think of an analogy to explain this. If you’ve already been sunburnt really badly and you’re suffering from that sunburn and then you go back out into the sun, it doesn’t take much for the sunburn to feel – to be exacerbated, if you like, and for you to feel the pain again…[103]
…
MEMBER: … I suppose the question then is, given a background, if one assumes without evidence of a previous similar experience of these kinds, previous traumas causing these sorts of – what you’ve described as excessive reactions. Once he’s had one, is that a significant factor that increases the level of vulnerability to that occurring again in your view?
DR SABOISKY: It’s a very complex question. I think the short answer is yes, clearly.
MEMBER: Okay. Dr Harrison, do you agree with that?
DR HARRISON: Yes …[104]
[102] Transcript of proceedings, 23 August 2019, at 150, lines 38-40.
[103] Ibid, at 154, lines 34-38.
[104] Ibid, at 156, lines 21-32.

This feature of Mr Jamieson’s ‘injury’, his increased vulnerability to mistrust and the related elevation of his susceptibility to experience further related symptoms, was a causal factor in his adverse response to interactions with Recovre, Comcare and Spotless in 2016, and it had not resolved as of December 2016 or 6 January 2017.
In short, even though I accept that the incapacitating effects of Mr Jamieson’s ‘injury’ remitted somewhat from March 2016, I am reasonably satisfied that employment factors continued to contribute to his psychiatric ailment to a significant degree in December 2016 and January 2017, such that, as of 6 January 2017, Mr Jamieson’s accepted ‘injury’ in the form of a ‘disease’ persisted at that time.
Incapacity for work
Mr Jamieson maintains that the incapacity for work he experienced on and after 6 January 2017 is attributable to the ‘injury’ he sustained in Government House employment. He maintains that the Spotless incident did not result in any incapacity for work over and above the incapacity that resulted from persisting effects of the 2014 ‘injury’.
Comcare argues that this is not so, and the claimed incapacity is solely attributable to the Spotless incident. In Comcare’s submission, with the possible exception of incapacity resulting from the effects of changes in medications, Mr Jamieson’s ‘injury’ was not productive of incapacity for work after March 2016 – he had functionally recovered to that extent. Furthermore, Comcare asserts that the Spotless incident entirely displaced and overtook or crowded out Mr Jamieson’s ‘injury’ as a cause of any subsequent incapacity for work. Thus, Comcare argues, any persisting effects of the ‘injury’, including any increased susceptibility to experience psychiatric symptoms that might be attributed to the 2014 ‘injury’, are not operative or effective factors leading to incapacity for work on or after 6 January 2017.
Under s 21 of the Act, Mr Jamieson will be entitled to compensation for incapacity if it is established that the claimed incapacity is as a result of his previously accepted ‘injury’.
As to what the causal test requires, the High Court said in Comcare v Martin[129](Martin), this is to be ‘determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose’.[130] Use of the indefinite article ‘a’ rather than the definite article ‘the’ suggests that the causal test does not require the injury to be the sole or even the predominant cause of the claimed incapacity[131] and, to use the words of McHugh J in Allianz Australia Insurance v GSF Australia Pty Ltd,[132] ‘[t]he term ‘result’ emphasises effect and is less concerned with the proximity of cause and effect’.[133] Even though this remark was directed to a causal test under different legislation, it is nonetheless apposite in the present legislative context.
[129] [2016] HCA 43.
[130] Ibid, at [42]; See also Allianz Australia Insurance v GSF Australia Pty Ltd [2005] HCA 26, per Gummow, Hayne and Heydon JJ at [96]-[99].
[131] Lopez Avila v K & S Freighters Pty Ltd [2015] FCA 962 at [12] citing Commonwealth of Australia v Smith [1989] FCA 189 at [17].
[132] [2005] HCA 26.
[133] Ibid, at [38]; see also Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464.
Furthermore, while much has been said over time and with authority about the application of ‘a commonsense evaluation of the causal chain’ in cases of like kind,[134] the High Court in Martin ruled that the causal test in s 5A(1) of the Act is not properly construed as one ‘importing a “common sense” notion of causation’.[135] Thus, in circumstances where the claimed incapacity for work is multi-factorial and the causal link to an ‘injury’ is intruded upon by supervening events or subsequent ailments, if the ‘injury’ is an effective or operative cause of the incapacity it may truly be said the incapacity is as a result of the injury.[136]
[134] See, for example, Baranski v Comcare [2012] FCA 925 at [105]-[110] referring to Telstra Corporation Limited v Bowden [2012] FCA 576 at [36]-[38]; McAuliffe v Comcare [2002] FCA 769 at [11]-[12].
[135] Martin [2016] HCA 43 at [42].
[136] Mitsopoulos v Comcare [2012] FCA 627 at [7].
In circumstances were a new cause of incapacity arises, or where other causal factors unrelated to ‘injury’ exist, it is necessary to determine if the ‘injury’ has been crowded out and entirely displaced as an operative or effective cause of the incapacity, or if it is a persisting and material cause. On this latter point, it is germane to recall what Lord Justice Du Parcq said, albeit when dealing with novus actus interveniens in a different legal context –
In my opinion, the following propositions may be formulated upon the authorities as they stand: first, an existing incapacity ‘results from’ the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity… If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though but for the original injury, there would have been no incapacity.[137]
[137] Rothwell v Caverswall Stone Co Ltd [1944] 2 All E.R. 350 at 365.
The point of principle is equally applicable to the causal test of compensable incapacity under s 21 of the Act.
Furthermore, an elevated continuing susceptibility of the kind Mr Jamieson suffered in the context of his March 2014 ‘injury’ may constitute incapacity for work. On this point, it is pertinent to consider what Higgins J said in Caldipp Pty Ltd v Delov,[138] albeit reviewing authorities applying different, but comparable, legislative tests relating to incapacity.[139] His Honour drew the following point of principle –
The point is that it is only necessary that the employment aggravates the symptoms of the underlying disease to the point where those symptoms cause incapacity. Then, if the same incapacity will recur whenever the worker resumes that (or like) work, there has been incapacity by reason of a work-related disease. The worker is, at least to that extent, incapacitated for work.[140]
[138] [2002] FCAFC 352.
[139] Ibid, at [60]-[80].
[140] Ibid, at [74]
This is consistent with the approach adopted in Asioty’s case.
Thus, considering the terms of the Act that must be applied in this case, where the particular employment significantly contributes to an ailment under claim and elevates the claimant’s susceptibility to recurrence of symptoms on resumption of work, such that an ‘injury’ exists under s 5A of the Act and the person has an incapacity to engage in work at the same level as immediately before the ‘injury’ happened, the incapacity for work may be compensable. The phrase ‘work at the same level’ refers to the characteristics, nature and qualities of the work being undertaken,[141] including its degree of difficulty.[142]
[141] Re Moon and Telstra Corporation Ltd [2006] AATA 996.
[142] Re Prica and Comcare [1996] AATA 218 at [22].
Thus, applying the terms of s 4(9) of the Act, it is necessary to determine if Mr Jamieson had an incapacity to engage in any work, or to engage in work at the same level as immediately before the ‘injury’ happened as of 6 January 2017.
On the evidence of Dr Hughes, Dr De Saxe, Dr Harrison and the oral evidence of Dr Saboisky, it is established that Mr Jamieson was incapacitated for work on and after 6 January 2017. At that time, he was medically certified as unfit to engage in any work by Dr Hughes.[143] The reason given for the incapacity at that time was ‘return of anxiety/sleep disturbance agitated since not working pre Xmas’.[144]
[143] T118, folio 653.
[144] Ibid.
On the evidence of Dr Harrison and Dr Saboisky, the Spotless incident caused a psychological response and triggered an escalation of symptoms – had the Spotless incident not occurred, it was likely that Mr Jamieson would have continued to work as he had done since March 2016. I accept that is correct and find that, when triggered by reminders of the way in which he was treated at Government House, Mr Jamieson’s heightened susceptibility to recurrence of symptoms resulted in incapacity for work. Furthermore, it is probable that the resultant effect of the 2014 ‘injury’ rendered him symptomatically vulnerable to particular employment circumstances, and this may be within the meaning of ‘incapacity to engage in work at the same level’ as prior to the 2014 ‘injury’.
On the question of operative causes of incapacity after the Spotless incident on or about 6 December 2016 and as of 6 January 2017 and subsequently, Dr Harrison explained that, in her opinion, the work injury in 2014 was an operative factor ‘in the background’.[145] Dr Saboisky did not disagree and gave the following explanation –
… So, it’s – so, it was several years down the track after the Government House series of incidents and if the Spotless incident hadn’t have happened he would have ultimately become relatively asymptomatic but he would have still borne a grudge against them. He still would have felt he was unjustly treated but wouldn’t have had symptoms of an adjustment disorder linked to that employment. So, the natural history of that series of employment issues would have resolved but for the Spotless incident. So, if the Spotless incident hadn’t have happened, a new trauma then, then he wouldn’t have continued to have ongoing adjustment disorder symptoms, or major depressive disorder symptoms.
…
Now, it’s a matter of contribution and attribution, isn’t it? So, what percentage of his sensitivity to the Spotless incident was due to Government House, and what percentage was due to his very traumatic childhood, we can only guess. I would say 80 per cent childhood, 20 per cent Government House, and then I think it would be very difficult to argue the toss either way. I mean it would be very hard to justify the 80/20 but I think the majority was preordained before his employment.[146]
[145] Transcript of proceedings, 23 August 2019, at 155.
[146] Ibid, at 155 -156.
Considering this assessment in the context of the extensive and detailed evidence Dr Saboisky gave, concurrently with Dr Harrison, I am reasonably satisfied that Mr Jamieson’s ‘injury’ was an operative factor in causing incapacity for work on 6 January 2017. I am not persuaded that the Spotless incident, or Mr Jamieson’s interactions with Recovre or Comcare, or the persisting effects of any childhood experience, including the latent trait to which Dr Saboisky referred, entirely displaced or crowded out the persisting effect of Mr Jamieson’s ‘injury’ as a material cause of incapacity at that time and subsequently. The better view of the evidence is that it was the enduring effect of Mr Jamieson’s ‘injury’, and the persistence of the heightened susceptibility to further symptoms he bore as a result, that caused psychological symptoms of his persisting disorder to flare and related incapacity to result when triggered by reminders of the way in which he was treated at Government House.
I note the evidence Dr Harrison and Dr Saboisky gave in respect of such matters in the following exchange –
DR SABOISKY: I think it’s a very complex question. If you look at the development of human beings, the first phase, there’s a trust versus mistrust. Can I trust my mother to provide me with food, shelter, comfort? If that doesn’t exist, if there’s a disruption of trust – primary trust, some individuals will remain profoundly mistrustful for the rest of their lives, regardless of circumstances. So no matter where they go, who they talk to, the primary issue from their point of view is, “I can’t trust this person”. So in Mr Jamieson’s case, we’re not too sure of how those primary traumas vetted him, but in these work-related incidents, it clearly exposes a hypersensitivity to trust-mistrust. So let’s assume that it was very high during his childhood. Let’s assume that it lessened during his productive working life until he had his back injury at Government House, and then he (indistinct) retire from the (indistinct) and how he was viewed by others caused problems with trust, so (indistinct). And it settled during 2016, to the extent that he was able to go to work, and it was amplified again, reactivated by that central question of (indistinct). That wouldn’t have happened to a person who didn’t have an issue with trust.
MEMBER: I suppose – sorry.
DR SABOISKY: Does that answer your question?
MEMBER: Yes, it does, in part. The part that I’m still trying to get clear in my mind is the extent to which, if at all, the circumstances of his Government House employment that he had difficulty with either activated that or caused that sensitivity to mistrust to become even more sensitised, so that he was more vulnerable to it.
DR SABOISKY: I think it’s a – maybe the word is latent. Yes, that there was a – a latent – let’s not call it a defect – a latent trait.
MEMBER: Right.
DR SABOISKY: That – that was informed by early childhood experience. It was amplified by a whole set of experiences. And it could be amplified by a whole lot of other experiences, of course.
Member: Sure.
DR SABOISKY: So the underlying vulnerability of mistrust is there. It can be well hidden by circumstances. A good marriage, a good job, and so on and so forth, but it can be triggered very quickly if there’s a perception of mistrust.
MEMBER: And so do we take it then that that’s what occurred in the context of the Government House situation?
DR SABOISKY: That’s correct.
MEMBER: And then it occurred again …
DR SABOISKY: That’s correct.
MEMBER: In the Spotless incident.
DR SABOISKY: That’s correct.
MEMBER: And do we take it that it occurred again in the particular incident that Mr Woulfe took you to of the interchange with Comcare over Comcare dealing with the employer about – commenting on the claim in 2016?
DR SABOISKY: And also the – the issue about cross-examination yesterday.
MEMBER: Okay. Do you agree with that, Dr Harrison?
DR HARRISON: Yes, I think so.[147]
[147] Transcript of proceedings, 23 August 2019, at 176 - 177.
This evidence needs to be understood in the context of evidence Dr Harrison and Dr Saboisky gave about the heightened susceptibility that resulted from triggering Mr Jamieson’s previously latent personality vulnerability or trait relating to mistrust. In my assessment of the evidence given by Dr Harrison, Dr Saboisky and Ms Collett, the heightened susceptibility Mr Jamieson sustained as a result of his 2014 ‘injury’ in Government House employment persisted before and after the Spotless incident and as of 6 January 2017. I have found that this was causally related, to a significant degree, to his really gross reaction, using Dr Saboisky’s words, to the Spotless incident. In this way, Mr Jamieson’s ‘injury’ was instrumental in his psychological symptoms and ruminations after the Spotless incident and it was an operative factor in causing the incapacity for work that resulted, as certified by Dr Hughes on 6 January 2017.
That being so, on the balance of probabilities, an unbroken causal chain linking the incapacity for work Mr Jamieson experienced on and after 6 January 2017 with his accepted 2014 ‘injury’ is established.
From this it follows that the incapacity for work Mr Jamieson experienced, and for which he claimed compensation as of 6 January 2017, is ‘as a result of’ his accepted ‘injury’.
Entitlement to compensation
It remains to determine the weekly amount of compensation that is payable, if any, under s 21 of the Act.
The legislative provisions governing calculation of compensation for incapacity resulting from ‘injury’ proceed on a weekly basis. This is central to the formulae set out in s 21(3) of the Act. I note, in this context, that the calculus involves a formulaic quantification of incapacity, in which the injured employee’s ability to earn income in the particular week, represented by the ‘AE’ amount, is subtracted from the amount of earnings immediately before the ‘injury’, represented by the ‘NWE’ amount. It is in this context that issues of ‘suitable employment’ (as defined in s 4(1)) arise when having regard to the matters set out in s 19(4) of the Act.
Matters of this kind were touched on during the hearing, but only lightly and, bearing in mind what the Perry J said in Comcare v Simmons[148] at [59], not in a sufficient manner to enable a properly formulated assessment to be made in respect of Mr Jamieson’s ‘AE’ and ‘NWE’ amounts in each week from 6 January 2017 to 30 June 2018, on which date, Mr Jamieson reached pension age for the purposes of s 23(1). Furthermore, the parties have not fully been heard on matters relating to ‘suitable employment’ and the matters to which regard must be had under s 19(4) of the Act.
[148] [2014] FCAFC 4.
For this reason, the application must be remitted to Comcare to determine the amount of compensation each week that is payable to Mr Jamieson, if any.
CONCLUSION
I am satisfied that the ‘injury’ in the form of a ‘disease’ Mr Jamieson suffered was in the form of an adjustment disorder with mixed features to which the events and circumstances of his Government House employment in 2013 and 2014 contributed to, to a significant degree. I am satisfied that, as of 6 January 2017, the causal contribution of Mr Jamieson’s previous employment by the employing agency persisted. Hitherto, this causal factor did not remit to the extent that it was crowded out or pushed to the background by other causal factors, and it was not overtaken or displaced by other events. I accept that Mr Jamieson’s personality trait from childhood and other factors contributed to his psychiatric ailment as of 6 January 2017. Evidence of these contributory causal factors is quite clear.
Nonetheless, the evidence given by Dr Harrison and Dr Saboisky about the triggering of Mr Jamieson’s hitherto latent trait or personality vulnerability in 2013 or 2014 and the elevated susceptibility this caused thereafter is compelling. When this is considered with the evidence of Dr De Saxe, Dr Knox, Dr Oelrichs, Dr Hughes, Ms Fisher and Ms Collett, the nature and effects of Mr Jamieson’s ‘injury’ and the significance of his heightened susceptibility to recurrence can clearly be understood. It is this contributory causal factor that was significant in provoking Mr Jamieson’s strong adverse reaction to the Spotless incident, which to anyone else might appear innocuous. It establishes a strong causal link between Mr Jamieson’s accepted injury and the incapacity for work he experienced on and after 6 January 2017.
Mr Jamieson’s entitlement to compensation for incapacity for work, as claimed, remains to be determined and this must be remitted to Comcare.
DECISION
The decision under review is set aside and, in substitution thereof, the Tribunal decides that Mr Jamieson is entitled to compensation for incapacity from 6 January 2017 to 30 June 2018.
The matter is remitted to Comcare to determine the amount of compensation that is payable to Mr Jamieson, if any.

196. I certify that the preceding 195 (one hundred and ninety five) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.

........................................................................
Associate

Dated: 17 December 2019

Date(s) of hearing: 15 November 2018, 22 August 2019 – 23 August 2019.

Applicant

Solicitors for Respondent:

Counsel for Respondent:

In Person

Ms Athena Cains, McInnes Wilson Lawyers

Mr Peter Woulfe