Lalliard and Comcare (Compensation)

[2019] AATA 5602

Lalliard and Comcare (Compensation) [2019] AATA 5602 (24 December 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1179

Re:Lyndie Lalliard

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:24 December 2019

Place:Canberra

The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The Tribunal awards the Applicant costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

........................................................................

Senior Member Linda Kirk

WORKERS COMPENSATION – whether Applicant suffered an injury as defined in section 5A of the Safety, Rehabilitation and Compensation Act 1988 – whether claimed condition is an injury, a disease and specifically an ailment or an aggravation – whether the claimed condition was contributed to, to a significant degree, by the Applicant’s employment – whether the Respondent is liable to pay compensation for the claimed condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review set aside and substituted – costs awarded to the Applicant


Administrative Appeals Tribunal Act 1975
Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 s 4, 5A, 5B, 14

Australian Postal Corporation v Burch (1998) 156 ALR 483
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Charles R Davidson & Co v M’Robb [1918] AC 304
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Hutchinson and Comcare [2018] AATA 4357
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
May and Military Rehabilitation and Compensation Commission [2011] AATA 886
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
MRCC v Roberts [2007] FCA 1
Prain v Comcare [2016] AATA 459
Prain v Comcare (2017) 256 FCR 65
Reardon and Comcare [2015] AATA 360
Re Pettiford v Comcare (2014) 139 ALD 411
Su v Comcare [2011] AATA 934

Vo and Comcare [2005] AATA 773

REASONS FOR DECISION

Senior Member Linda Kirk

24 December 2019

1. Ms Lyndie Lalliard (‘the Applicant’) was born in 1971.  She commenced permanent employment as a Police Officer with the Australian Federal Police (‘AFP’) in 2002.

2. On 21 September 2017, the Applicant submitted a claim for workers’ compensation for ‘Depression/anxiety’[1] (‘the claimed conditions’).

   [1] Exhibit R2, T6, 34-40.

3. By determination dated 16 November 2017, Comcare (‘the Respondent’) denied the Applicant’s claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’).[2]  While recognising that the Applicant had suffered an ailment, the delegate did not consider that the Applicant’s employment was causative of her condition.  The delegate found that the Applicant’s condition developed as a result of reviewing material relating to alleged bullying and harassment that occurred 10 years ago for purposes which were not part of her work duties, and therefore her employment was not significant in the causation of her condition.[3]

   [2] Exhibit R2, T12, 99-100.

   [3] Exhibit R2, T12, 99.

4. On 11 December 2017 the Applicant submitted a Request for reconsideration of the delegate’s decision.[4]

   [4] Exhibit R2, T13, 102-103.

5. On 10 January 2018 the Respondent issued a Reviewable Decision affirming the determination dated 16 November 2017.[5]

   [5] Exhibit R2, T14, 109-116.

6. On 9 March 2018, the Applicant’s solicitors lodged an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (‘the Tribunal’). 

7. The review application was heard by the Tribunal at a hearing in Canberra on 8, 9 and 10 July 2019. The following witnesses gave oral evidence at the hearing:

   • the Applicant;
   • Superintendent James Bellicanta;
   • Dr Bruce Lean;
   • Dr William Knox; and
   • Dr John Saboisky.

8. The following documents were before the Tribunal:

   • Witness Statement of Mr James John Bellicanta dated 29 April 2019 (Exhibit A1);
   • Summonsed material from Gungahlin General Practice (pages 32-106) (Exhibit A2);
   • Summonsed material from Dr Greg Aldridge of Gungahlin General Practice (pages 1-38) (Exhibit A3)
   • Applicant’s Statement dated 25 May 2018  (Exhibit A4);
   • Applicant’s Supplementary Statement dated 30 April 2019 (Exhibit A5);
   • Medical Report of Dr Bruce Lean dated 7 June 2019, together with the Briefing Letter dated 29 May 2019 (Exhibit A6);
   • Medical Report of Dr William Knox dated 3 December 2018, together with the Briefing Letter dated 30 November 2018 (Exhibit A7);
   • Letter from the Respondent to the Applicant dated 6 June 2005, with attachment  (Exhibit A8);
   •  Document titled, 'Patient Information Sheet' dated 28 April 2017 (Exhibit A9);
   • Witness Statement of Ms Annie O’Connor dated 14 June 2019 (Exhibit R1);
   • Section 37 T-Documents (pages 1-221) (Exhibit R2);
   • Section 71 Documents (pages 1-239) (Exhibit R3);
   • Medical report of Dr John Saboisky dated 6 July 2018, together with the Briefing Letter dated 29 May 2018 (Exhibit R4);
   • Medical Certificates of the Applicant, variously dated (Exhibit R5);
   • Applicant’s Statement of Facts, Issues and Contentions dated 11 February 2019 (‘Applicant’s SFIC’); and
   • Respondent’s Statement of Facts, Issues and Contentions dated 22 February 2019 (‘Respondent’s SFIC’).

9. On 12 July 2019 the Applicant, with the consent of the Respondent, tendered a further document:

   ·Email from Kate Kruger, Team Leader AFP Safe Place Reform Culture and Standards, to the Applicant dated 29 June 2017 (Exhibit A10).

10. On 16 July 2019 the Respondent provided a Submission in Response to Proposed Further Evidence of the Applicant – A10.

11. On 19 July 2019 the Applicant provided Submissions in Reply to Respondent’s Submissions dated 16 July 2019.

    LEGISLATIVE FRAMEWORK

12. The right to compensation for an employee under the SRC Act is conferred by s 14(1) which provides that Comcare is:

    … liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (emphasis added)

13. “Injury” is defined in s 5A of the SRC Act:

    “(1)     …

    (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.

14. A “disease” is defined in s 5B of the SRC Act to mean::

    “(1)     …

    (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.”

15. In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment s 5B(2) provides that 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.

16. This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”

17. Sub-section 5B(3) of the Act provides that ‘significant degree’ means ‘a degree that is substantially more than material.’

18. An ‘ailment’ is defined in s 4 of the SRC Act to mean:

    … any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

19. ‘Aggravation’ is further defined in s 4 to include ‘acceleration or recurrence’.

    ISSUES FOR DETERMINATION

20. The issues for determination are as follows:

    (1)Did the Applicant suffer an ‘injury’ as defined in s 5A of the SRC Act, and specifically, are the claimed conditions:

    (a)‘an injury (other than a disease)’ as defined in s 5A(1)(b) of the Act; or

    (b)a ‘disease’ as defined in s 5A(1)(a) and s 5B(1) of the Act, specifically are the conditions:

    (i)an ‘ailment’ or ‘aggravation’ as defined by s 4 of the Act?

    (ii)contributed to by the Applicant’s ‘employment’ with the AFP as required by s 5B of the Act? and

    (iii)was this employment contribution ‘significant’ as defined by s 5B(3) of the Act?

    (2)Is the Respondent liable to pay compensation for the Applicant’s ‘injury’ pursuant to section 14 of the SRC Act.

    EVIDENCE BEFORE THE TRIBUNAL

    Applicant’s employment with the AFP

21. On 21 January 2002 the Applicant commenced a temporary contract position with the AFP in the security vetting section in Civic.[6] In approximately April 2002 she obtained a permanent position with the AFP.[7]  She commenced recruit training in August 2002 and completed this training in March 2003.[8]  She was first posted to the City Police Station as a general duties and operational officer.[9]  In late 2005 she was posted to the Woden Police Station.  She was in a general duties operational position and enjoyed her work.[10] Her work included ‘walking the beat’ and she was equipped with a baton, gun, handcuffs and capsicum spray.

    [6] Exhibit A4, Applicant’s statement, [16].

    [7] Exhibit A4, Applicant’s statement, [16].

    [8] Exhibit A4, Applicant’s statement, [17]-[18].

    [9] Exhibit A4, Applicant’s statement, [18].

    [10] Exhibit A4, Applicant’s statement, [27]-[28].

    2005 PRS investigation and Comcare claim

22. In November 2004 the Applicant was involved in an altercation with a taxi driver after an evening work gathering. She showed the driver her police badge to vouch for her honesty.  When she tried to get out the car her left foot was slammed in the door causing it to fracture.  This event gave rise to a PRS investigation and the allegation of the Applicant showing her badge was sustained.[11]

    [11] Exhibit A4, Applicant’s statement, [22]-[24].

23. On 24 November 2004, the Applicant’s general practitioner, Dr Watson, noted she was unable to sleep and was suffering from post-traumatic stress disorder as a result of the incident.[12]  On 13 December 2004, Dr Watson diagnosed the Applicant with adjustment disorder with a depressed mood. She was certified unfit for work until late January 2008.[13]

    [12] Exhibit R2, T15, 123.

    [13] Exhibit R2, T15, 124.

24. On 6 June 2005, the Respondent accepted liability to pay compensation to the Applicant pursuant to section 14 of the SRC Act in respect of ‘Adjustment Reaction with Depressive Reaction’.[14]

    [14] Exhibit A8, Letter from the Respondent to the Applicant dated 6 June 2005; Exhibit A4, Applicant’s statement, [25].

    Interactions with Sergeant Jamieson

25. The Applicant first met Sergeant Francis Jamieson (‘Jamieson’), the Officer in Charge (OIC) of the Woden station, in approximately September 2006.[15]  From her first encounter with Jamieson, the Applicant felt that he seemed to ‘have it in’[16] for her and from that point on ‘made life difficult’ for her at the station.[17]

    [15] Exhibit A4, Applicant’s statement, [30].

    [16] Exhibit A4, Applicant’s statement, [30].

    [17] Exhibit A4, Applicant’s statement, [31].

26. In her statement, the Applicant described her interactions with Jamieson at this time and their impact on her:

    32.  I was the only female officer at the station at the time who was single, had children and did shift work. Juggling my family and professional life was difficult but manageable, however I feel that my situation was not fully appreciated as the other officers either had partners (and as they were males, most of the caring duties were conducted by their partners) or didn’t have children. I was essentially doing things on my own and I feel that Jamieson lacked any perspective and compassion for my situation. Almost every occasion I took leave to care for my daughters he directed me to attend his office and made some derogatory or dismissive comment about me taking too much leave. I took this quite personally and at that time it was well before there was any serious discussion or thought about the unique pressures faced by female workers, much less female police officers doing shift work. I continued to perform my duties, though his attitude and comments made this increasingly unpleasant. I also spoke with the wellness officer who agreed that his comments were out of line.[18]

    [18] Exhibit A4, Applicant’s statement, [32].

27. In December 2006 the Applicant suffered an injury to her wrist and liability for this injury was subsequently accepted by the Respondent.[19]  She had surgery and was off work for about six to eight weeks.[20]  She returned to work in February 2007 but was limited in the work she could do as she was still recovering and further surgery was planned.[21]  She was placed working at the front office of the station.

    [19] Exhibit A4, Applicant’s statement, [33].

    [20] Exhibit A4, Applicant’s statement, [34].

    [21] Exhibit A4, Applicant’s statement, [34]-[35].

28. During her graduated return to work, the Applicant perceived she was bullied and harassed by Jamieson.  This behaviour included:

    ·The placement of the Applicant in the front office during her return to work on suitable duties despite the Applicant's non ‘use of force-qualified’ status;[22]

    ·Negative comments directed towards the Applicant implying that she was malingering;[23]

    ·Referring to the Applicant as a 'broken biscuit' and 'damaged goods';[24]

    ·Involvement in the issuing of a Supreme Court subpoena on the Applicant, in circumstances where the Applicant was on medical leave for a psychological condition;[25] and

    ·His insistence on attending a meeting with the Applicant and her treating General Practitioner, Dr Tim Watson, on 5 April 2007.[26]

    [22] Exhibit A4, Applicant’s statement, [36]-[38].

    [23] Exhibit A4, Applicant’s statement, [38].

    [24] Exhibit A4, Applicant’s statement, [38].

    [25] Exhibit A4, Applicant’s statement, [40].

    [26] Exhibit A4, Applicant’s statement, [42].

29. As a consequence of this behaviour, the Applicant experienced symptoms of depression and anxiety.[27]  She requested a transfer and started a new position with the City Police Station on 23 April 2007 where she no longer reported to Jamieson.[28]

    [27] Exhibit A4, Applicant’s statement, [43].

    [28] Exhibit A4, Applicant’s statement, [44].

30. In a report dated 21 May 2007, Dr William Lucas, consultant psychiatrist, diagnosed the Applicant as suffering from ‘adjustment disorder with mixed anxiety and depressed mood’.[29]

    [29] Exhibit A4, Applicant’s statement, [43]; Exhibit R2, T3, [12]-[25]; Respondent’s SFIC, [12].

    2008 PRS Complaint against Jamieson

31. In early 2008, the Applicant was referred to the AFP Confidant Network and was encouraged to report her negative experience with Sergeant Jamieson.[30] The Applicant subsequently made a formal complaint to AFP Professional Standards regarding her negative experience with Jamieson.[31] 

    [30] Exhibit A4, Applicant’s statement, [45]; Applicant’s SFIC, [12].

    [31] Exhibit A4, Applicant’s statement, [46]; Applicant’s SFIC, [12]-[13].

32. In April 2008 the Applicant participated in a three-hour interview for the purpose of investigating her complaint. The interview caused the Applicant to experience significant anxiety.[32]

    [32] Exhibit A4, Applicant’s statement, [47]; Applicant’s SFIC, [14].

33. On 19 May 2008, Dr Watson reported the Applicant was emotionally labile and suffering from anxiety due to the internal investigation.  On 26 May 2008, Dr Watson noted that the Applicant had not been sleeping and that work was okay. The Applicant was certified unfit for work until 26 June 2008 due to anxiety.

34. On 28 July 2008, Dr Watson certified the Applicant unfit for work until 11 August 2008 due to anxiety.[33]

    [33] Exhibit A2, Summonsed documents from Gungahlin Medical Practice, 24.

35. On 12 August 2008, Dr Watson certified the Applicant unfit for work until 12 September 2008 due to anxiety.[34]

    [34] Exhibit A2, Summonsed documents from Gungahlin Medical Practice, 24.

36. On 26 August 2008, Dr Watson reported the Applicant was suffering from depression. [35]

    [35] Exhibit A2, Summonsed documents from Gungahlin Medical Practice, 24-25.

37. On 11 September 2008, Dr Watson certified the Applicant as unfit for work until 11 October 2008 due to anxiety.  He formulated a Mental Health Plan for the Applicant for chronic disease management. The Applicant was diagnosed with depression and anxiety, with obsessive tendencies. It was observed the Applicant had a reduced concentration, low self-esteem, difficulty making decisions and felt tired.[36]

    [36] Exhibit R2, T15, 163.

38. In a report dated 16 October 2008, Dr Graham George, consultant psychiatrist, diagnosed the Applicant as suffering from ‘major depression’.[37]

    [37] Exhibit R3, 21; Exhibit A4, Applicant’s statement, [50].

39. The Applicant's complaint against Sergeant Jamieson was found to be ‘Not Established’ as the investigation did not disclose evidence to support the Applicant’s complaint.[38]  The Applicant was disappointed with this outcome as she believed her complaint was not appropriately investigated.[39]

    [38] Exhibit A4, Applicant’s statement, [51]; Applicant’s SFIC, [15]; Exhibit R2, T10, 88.

    [39] Exhibit A4, Applicant’s statement, [51]; Applicant’s SFIC, [16].

40. On 12 October 2008, Dr Watson certified the Applicant unfit for work until 6 April 2009 due to anxiety.[40]

    [40] Exhibit A2, Summonsed documents from Gungahlin Medical Practice, 25-26.

    2008 Comcare claim

41. On 29 November 2008 the Respondent denied liability for a workers compensation claim made by the Applicant for Major depressive disorder, single episode which occurred on 15 March 2007.[41]

    [41] Exhibit R2, T3, 12-27; Exhibit A4, Applicant’s statement, [52]; Applicant’s SFIC, [17].

42. On 19 February 2009 the Applicant sought a reconsideration of this decision.  On 9 July 2009 the Respondent issued a Reviewable Decision which affirmed the earlier decision.[42]

    [42] Exhibit A4, Applicant’s statement, [52]; Applicant’s SFIC, [17].

43. The Applicant decided not to take any further action as she was ‘emotionally exhausted’ although she continued to believe that her psychological injury was caused by her employment and the actions of Jamieson.[43]

    [43] Exhibit A4, Applicant’s statement, [53].

44. For the next few years the Applicant ‘cycled through bouts of depression and anxiety’ caused by her daughter’s health problems and interactions with her ex-husband.[44]

    [44] Exhibit A4, Applicant’s statement, [54]-[55].

45. In October 2015 the Applicant changed her medication from Cymbalta to Lovan.[45]

    [45] Exhibit R2, T15, 145.

46. In May 2016 the Applicant experienced a ‘brief respite’ from her symptoms and ceased taking anti-depressants.  She remained off her medication for the remainder of 2016 and early 2017.[46]

    [46] Exhibit A4, Applicant’s statement, [58].

    Reaction to release of AFP Cultural Change Report

47. On 22 August 2016, Ms Elizabeth Broderick and the AFP Commissioner Andrew Colvin released the AFP Cultural Change Report (‘Broderick Report’).  As a result of the Report, a new Reform, Culture and Standards Portfolio was created within the AFP to oversee the 24 recommendations. One of these recommendations led to the creation of Safe Place – a team to investigate allegations of serious bullying and harassment, sexual harassment and sexual assault. The Safe Place team is responsible for criminal and/or administrative investigations. In line with the Commissioner’s code of conduct, AFP members were encouraged to bring forward past and current matters to Safe Place for investigation.[47]

    [47] Exhibit A4, Applicant’s statement, [59]; Exhibit A5, Applicant’s supplementary statement, [1].

1. On the same day the Applicant received an email from her supervisor Ms Rochelle Paul, enclosing the report and explaining the role of Safe Place.[48]

   [48] Exhibit A4, Applicant’s statement, [59].

2. In her statement, the Applicant described her thoughts following the release of the report:

   60.  Because of this report and the new era it promised, the AFP’s approach to dealing with bullying and harassment matters is now seemingly in direct contrast to how it was at the time of my harassment by Jamieson and Comcare claim. Following the release of the report I contemplated over many months as to whether I would raise my case of bulling (sic) and harassment from Jamieson ten years prior.

   61.  This was not an easy decision for me to make. I had however spoken with numerous members of the AFP who advised that they had raised issues of harassment and bullying that had not been dealt with in an appropriate manner in the past. They also advised that this had led to members leaving the AFP in form of being ‘asked to resign’ or members leaving of their own accord prior to being investigated. There were also numerous articles and notices from Commissioner Colvin and the AFP Executive on the AFP Hub encouraging members to come forward with matters to report to Safe Place as the Commissioner was determined to reform the culture of the organisation and also call out and rid the people who were causing this poor culture. This change in cultural direction was largely as a result of the findings outlined in the Cultural Change Report.[49]

   [49] Exhibit A4, Applicant’s statement, [60]-[61].

3. In her Supplementary statement, the Applicant explained her decision and the steps she took to approach Safe Place with her 2007 experiences of bullying and harassment:

   2.    After contemplating the request to come forward and share my past experiences, and after a significant amount of consideration, on Tuesday, 14 March 2017, I finally made the decision to come forward to share my past ordeal in relation to the bullying and harassment brought upon me by then Sergeant Frank Jamieson in 2007, and the subsequent failure by PRS to adequately investigate the matter in 2008.

   3.    I had kept all the paperwork and documents relating to the 2007/08 matter in a box under my desk at AFP Headquarters. Adhering to the core values of the AFP I took the box out and started to go through all the documentation to collate a series of documents that could be taken to the Coordinator of Reform, Culture and Standards, Superintendent Jamey Bellicanta. Being aware of the workload of Superintendent Bellicanta, I sorted through the extensive collection of documents and endeavoured to present a succinct body of documentation which communicated all significant details of what had occurred.[50]

   [50] Exhibit A5, Applicant’s supplementary statement, [2]-[3].

4. She described her reaction to going through the material:

   4.    When I started going through the material I found myself re-living the bullying and harassment by then Sergeant Frank Jamieson, and the grief I suffered as a result of the investigation, and became extremely upset. I felt panicked, was shaking, crying, felt nauseous and had to go to the bathroom and stay in one of the cubicles for an extended period of time to try and compose myself before returning to my desk.[51]

   [51] Exhibit A5, Applicant’s supplementary statement, [4].

   Meeting with Superintendent Bellicanta

5. On 15 March 2017 the Applicant met with Superintendent James Bellicanta, the Coordinator of Reform, Culture and Standards. She told him her story and provided him with her initial Comcare claim, her Comcare reconsideration and the report from Dr Watson detailing Jamieson’s behaviour at his practice.[52]  He said he would look at the materials.  When she was speaking to him she ‘started to tear up and ended up crying when trying to quickly summarise for him what the matter concerned.’  This ‘caused her to feel panicked’ and experience ‘considerable embarrassment’ in a professional discussion with a superior officer.[53]

   [52] Exhibit A5, Applicant’s supplementary statement, [5].

   [53] Exhibit A5, Applicant’s supplementary statement, [6].

6. On 16 March 2017 the Applicant met again with Superintendent Bellicanta at his request. He advised her that he was ‘horrified’ about what had happened to her and ‘couldn’t believe that this had not been adequately investigated at the time.’[54] He said he had taken her information to his supervisor Commander Sue Thomas who had subsequently advised her matter was ‘serious and needed to be provided to Safe Place for further investigation.’  She gave permission for the details and documents to be passed on to Safe Place.[55]  Superintendent Bellicanta informed her that someone would be in contact with her soon.[56]

   [54] Exhibit A4, Applicant’s statement, [63].

   [55] Exhibit A4, Applicant’s statement, [63].

   [56] Exhibit A5, Applicant’s supplementary statement, [9].

7. The Applicant explained in her statement that her actions in going to Superintendent Bellicanta with these materials ‘were in direct response to requests made by Commissioner Colvin for submissions, responding to one of the findings contained in the Cultural Change Report to abide by the AFP core values, and to call out those who did not abide by these values.’ [57]

   [57] Exhibit A5, Applicant’s statement, [63].

8. On 28 March 2017, the Applicant emailed Superintendent Bellicanta asking him to whom at Safe Place he gave the paperwork as she wished to also send them the 2008 report by Dr George detailing her major depression as a consequence of the bullying and harassment by Jamieson.  She did not receive a response from him, nor had she heard from Safe Place at this stage.

9. She described her reaction to this process in her statement:

   Going over these events again caused me significant emotional distress and anxiety. I fell into a hole of depression which mirrored how I had felt ten years prior. I could not sleep, but could not get out of bed either. I withdrew from all of my social contacts and had thoughts of suicide and that it would be easier for everyone in my life if I was gone. I even made plans for this, changing my Will and considering how I would commit suicide.[58]

   [58] Exhibit A4, Applicant’s statement, [64].

   Contact from Safe Place and 2017 Compensation claim

10. On 24 May 2017 the Applicant was contacted on her mobile by Safe Place to provide an update on its actions.  She was advised that the information she provided was being used in a consolidated and de-identified brief regarding Jamieson to Workforce Development.  The Applicant said that she was ‘concerned her information had gone nowhere, but heartened and relieved that there had been progression.’[59]

    [59] Exhibit R3, Section 71 Documents,134.

11. The Applicant did not have further contact with Safe Place until 29 June 2017 when she was contacted on her mobile. A request was made by Safe Place for her approval to ‘formalise allegations against [Jamieson]’.[60]

    [60] Exhibit R3, Section 71 Documents, 134.

12. The Applicant was off work from 3 April to 4 July 2017 when she returned to work two days a week.[61] 

    [61] Exhibit R2, T7, 42; Exhibit A4, Applicant’s statement, [67].

13. The Applicant had a more detailed conversation with Safe Place following her return to work on 12 July 2017.  The AFP Safe Place & Investigation Contact Record records the following:

    [redacted] met Lalliard in the OC meeting room, outside Safe Place. Explained process that SP will utilise with PRS, being provision of authorised materials to PRS as one brief for preliminary assessment as to how the investigation might be progressed, then results of that preliminary assessment back to SP, SP to clients for final advice and approval if necessary, then identified forwarding to PRS.  Lalliard provided approval for her matters to be included in the preliminary assessment to PRS.  Lalliard also providing approval for [redacted] to follow up with PRS re: earlier referral results, and IMT re: earlier Comcare claim. [redacted] attempting to make these enquiries over concerns Lalliard may be adversely affected by following up with these areas, and reliving difficult issues, again. [emphasis in  original].

14. On 26 July 2017 the Applicant advised Safe Place that she wished to submit a work injury report in relation to the issues she had been experiencing since telling her story in March 2017.  The Applicant indicated she was concerned about exacerbating her condition by further reviewing her old Comcare file and asked [redacted] to do it.[62]

    [62] Exhibit R3, Section 71 Documents, 135.

15. From 6 September 2017 the Applicant commenced working three days a week.[63]

    [63] Exhibit R2, T7, 42-43; Exhibit A4, Applicant’s statement, [67].

16. On 21 September 2017 the Applicant submitted a claim for compensation for her psychological symptoms.[64]  She provided an incident report on 10 October 2017 with the relevant events and details.[65]

    [64] Exhibit R2, T6, 34-40.

    [65] Exhibit R2, T7, 42-44; Applicant’s statement, [70].

    Medical  treatment for condition

17. At the beginning of April 2017, the Applicant was ‘extremely anxious and depressed and unable to stop crying’.[66]  She went to see Dr Watson on 3 April 2017 and reported to him that she was struggling with ‘low moods’.[67] The Applicant discussed how previous work related issues caused her career to suffer.[68] Dr Watson gave her a medical certificate stating she was unfit for work and prescribed Lovan 20 mg, the anti-depression medication she had previously been taking.  On 7 April 2017 the Applicant consulted Dr Watson and Stilnox was added to her prescription.[69]

    [66] Exhibit A5, Applicant’s supplementary statement, [12].

    [67] Exhibit R2, T15, 146.

    [68] Exhibit R2, T15, 146.

    [69] Exhibit R2, T15, 147.

18. On 28 April 2017, a Mental Health Plan was formulated with Dr Watson, which diagnosed the Applicant with reactive depression and anxiety.[70]   It was noted she had a prior history of Anxiety Depressive illness.[71]

    [70] Exhibit R2, T15, 160.

    [71] Exhibit R2, T15, 160.

19. The Applicant was referred to and seen by Dr Greg Aldridge, clinical psychologist.  She continued to see him weekly for the first three months, which was later reduced to once a fortnight.[72]

    [72] Exhibit A4, Applicant’s statement, [65].

20. In a report dated 11 May 2017, Dr Aldridge reported to Dr Watson that the Applicant was ‘pleasant but at times tearful and clearly distressed.’[73] The Applicant had reported her mood ‘went down’ five weeks prior for no apparent reason. Her partner’s temper was identified as a ‘potential trigger’ but that was ‘not new’.  The Applicant detailed her history of depressive episodes, starting when she was 26 years old. She said she has never been ‘right’ since her first episode of depression. Dr Aldridge was of the opinion the Applicant was ‘experiencing a major depressive episode’.[74]

    [73] Exhibit A3, Summonsed documents from Dr Greg Alridge, 6.

    [74] Exhibit A3, 6.

21. During cross-examination, the Applicant was asked why during this consultation with Dr Aldridge she made no mention of the incident of revisiting the materials in relation to the 2007 bullying.  She said that at the time she was ‘extremely distressed’.

22. On 16 May 2017 the Applicant attended a further appointment with Dr Aldridge.  At this appointment she told him about the bullying by Jamieson she experienced in 2007 and also about her reporting of this to Safe Place in mid-March 2017.  She reported having not received contact from Safe Place, and that she thought she was ‘about to go through ignoring / bullying like ten years ago’.[75]

    [75] Exhibit A3, Summonsed documents from Dr Greg Alridge, 7.

23. The Applicant told the Tribunal that at this time she was feeling hopeful about the Safe Place process and hoped that what she had provided to Safe Place would be ‘looked into’.  She denied she wanted an investigation. She wanted to know who had taken carriage of the information at Safe Place and she did have concerns that the information would be ‘brushed under the carpet’.

24. In a letter dated 6 June 2017, Dr Watson confirmed he had been treating the Applicant regarding her ‘mental health dysfunction’, specifically major depressive episode in relation to an ongoing investigation by Safe Place. Dr Watson reported the Applicant had been very agitated and exhibiting flat mood, and suffered from insomnia and anhedonia.[76]

    [76] Exhibit R2, T15, 152; Exhibit R2, T15, 157.

25. In a report dated 26 June 2017, Dr Aldridge reported he believed the Applicant had ‘relapsed into major depression with agitations’.[77] The Applicant had reported to him having thoughts of self-harm with a plan to carry out, though she refrained from doing so as she had not changed her will. Dr Aldridge recommended the Applicant’s antidepressant medication be increased.[78]

    [77] Exhibit A3, Summonsed documents from Dr Greg Alridge, 9.

    [78] Exhibit A3, Summonsed documents from Dr Greg Alridge, 9.

26. On 27 June 2017, the Applicant attended an appointment with Dr Watson and reported having a relapse of agitated depression. She had thoughts of self-harm though did not act upon it.[79]

    [79] Exhibit R2, T15, 153.

27. On 18 July 2017, the Applicant reported to Dr Watson that she was struggling with her sleep and the investigation at work was a slow process.[80]

    [80] Exhibit R2, T15, 154.

28. On 25 August 2017, the Applicant reported to Dr Watson that her acting co-ordinator accused her of being tired and using alcohol. She underwent a breath test as a result.[81]

    [81] Exhibit A2, 63.

29. On 18 September 2017, Dr Watson reported the Applicant had a re-emergence of depression/anxiety as a consequence of bullying and harassment.[82] Dr Watson certified the Applicant unfit for work until 12 November 2017.

    [82] Exhibit R2, T15, 155.

    Evidence of Superintendent James Bellicanta

30. Superintendent Bellicanta was attached to the AFP portfolio of Reform Culture and Standards from 22 August 2016 to 18 May 2018.[83]  During the initial stages of ‘operationalising’ the new Reform portfolio, his role had two aspects: presenting to a wide AFP audience on and offshore and meeting with AFP members who wished to report matters to the Safe Place team.[84]  He told the Tribunal that his role was to ‘champion change within the organisation’.

    [83] Exhibit A1, Bellicanta Statement, [3].

    [84] Exhibit A1, Bellicanta Statement, [11].

31. In his statement, he described the purpose and role of Safe Place:

    8.    Safe Place was established to provide support to AFP staff who suffered sexual harassment or bullying and to give them the reassurance that their concerns would be treated with respect, sensitivity and confidentiality. Safe Place is a victim-focussed capability where the outcomes of each report is influenced by each client's wishes.[85]

    [85] Exhibit A1, Bellicanta Statement, [8].

32. During his oral evidence at the hearing, he explained that there were a ‘suite of options’ available in response to a matter being raised with Safe Place.  A person could request to speak to a Commissioner, to provide information only, or request action be taken.  If there is a request for action there may be mediation arranged between the parties or an investigation may be conducted.  The response was on an ‘as needs basis’ in accordance with the member’s wishes, unless there was a legal requirement to act.

33. He was contacted by the Applicant in March 2017 who requested an opportunity to meet with him to discuss a matter relevant to the AFP’s cultural reform processes.[86]  He met with her on 16 March 2017 and they had a one hour conversation.  He described his observations of the Applicant during their conversation:

    It appeared to me that during the course of the conversation that Federal Agent Lalliard was affected by re-telling the events that had impacted her previously. She appeared upset, helpless and in need of genuine professional support.[87]

    [86] Exhibit A1, Bellicanta Statement, [12].

    [87] Exhibit A1, Bellicanta Statement, [14]

34. After their conversation he provided documents from the Applicant to Safe Place.[88] From then on he and the Applicant corresponded via email on numerous occasions, but he had no direct involvement in the Safe Place process.[89]  He told the Tribunal that he would have expected there to be a response by Safe Place to the Applicant within 28 days.

    [88] Exhibit A1, Bellicanta Statement, [15].

    [89] Exhibit A1, Bellicanta Statement, [16].

    EXPERT MEDICAL EVIDENCE
    Dr John Saboisky, Psychiatrist

35. The Applicant was seen by Dr Saboisky at the request of the Respondent on 24 October 2017. In a report dated 27 October 2017,[90] Dr Saboisky diagnosed the Applicant as suffering from ‘major depressive disorder’ beginning in March 2017.  In his opinion:

    the only trigger to this bout of depression is the fact that she read through her paperwork regarding the alleged abuse of Frank Jamieson 10 years ago.[91]

    [90] Exhibit R2, T11, 89-97.

    [91] Exhibit R2, T11, 95.

36. The Applicant was reassessed by Dr Saboisky on 6 July 2018.  In his report of the same date, Dr Saboisky considered the Applicant continued to suffer from ‘mild depression and anxiety’ and that the symptoms of this condition were present in April 2017.[92] He noted that there was ‘a clear cut gap of 12 months before the development of depression in April 2017’ and that the Applicant ‘had ceased the anti-depressant Cymbalta.’[93]

    [92] Exhibit R4, Report of Dr John Saboisky dated 6 July 2018, 5.

    [93] Exhibit R4, Report of Dr John Saboisky dated 6 July 2018, 5.

37. In considering the main factors which contributed to the Applicant's current condition, Dr Saboisky provided:

    It is clear that she has a biological predisposition of significant psychosocial turbulence in her life, a significant past history of alcohol abuse, in addition to the perceived workplace stressor of Frank Jamieson.

    One can only guess the percentage level of contribution. I think it is reasonable to argue that a person of normal fortitude without any pre-existing history of depression, alcohol abuse or domestic violence would have had some form of psychological reaction to the stressors she encountered with Frank Jamieson. On the other hand, the fact she had such a plethora of historical stressors would have predisposed her to be more likely to react to the stress of re-examining material in the light of the Broderick enquiry.

    I would estimate there is a 75% of contribution of non-work factors and 25% related to work factors.[94]

    [94] Exhibit R4, Report of Dr John Saboisky dated 6 July 2018, 6.

38. During his oral evidence at the hearing, Dr Saboisky explained that in his opinion, 25% of the Applicant’s condition could be attributed to reading the materials in relation to her interactions with Jamieson in 2007.  In relation to the remaining 75%, this includes the previous work-related incident, as well as her prior experience of depression and domestic issues she was having with her partner.

39. He told the Tribunal that there were multifactorial reasons for the Applicant approaching Safe Place.  Of these, there was the desire to reactivate the Comcare claim, to revisit liability and to focus on the behaviour of Jamieson.  There was a ‘sense of injustice from the past’ and ‘seeking to right a wrong’.  The Applicant’s behaviour in keeping the box of materials under her desk suggests that the bullying by Jamieson was a trauma that she wanted to keep well documented.

40. During cross-examination Dr Saboisky agreed that the Applicant may have been more resilient at the time if she had been on anti-depressants.  She has a vulnerability or susceptibility to depression.

41. Dr Saboisky explained that a person who experiences post-natal (or any other) depression has a 50% chance of experiencing another bout of depression in the future.  Where a person has experienced two episodes of depression there is an 80% chance they will experience it again.  This is regardless of the cause. Anti-depressants provide a ‘protective factor’ and there is a relapse rate of between 65% to 85% in six months.

    Dr Bruce Lean, Consultant psychologist

42. The Applicant began consultations with Dr Bruce Lean, on 27 November 2018. She attended further consultations with him on 11 December 2018, 14 December 2018, 9 January 2019, 23 January 2019, 27 February 2019, 20 March 2019 and 6 May 2019.

1. In a report dated 7 June 2019 prepared at the request of the Applicant’s solicitors, Dr Lean reported that during his treatment of the Applicant he changed her medication and she benefited from this change.  He diagnosed the Applicant as suffering:

   ·Major Depressive Disorder (MDD) – severe and recurring; and

   ·Recurrent Adjustment Disorder with Anxious Mood. [95]

   [95] Exhibit A6, Report of Dr Bruce Lean dated 7 June 2019, 3.

2. In answer to the question of whether, in his view, the Applicant sustained an injury, or aggravation of an injury, in the course of her employment with the AFP, Dr Lean stated:

   My strong conclusion is that Federal Agent Lalliard sustained an injury as a result of bullying and harassment of an extremely stressful nature in 2007 due to what she has consistently reported was the threatening and controlling behaviour of her then Sergeant, Francis Jamieson.

   This lead to an exacerbation of her MDD which would have been very distressing to Federal Agent Lalliard in itself as she first suffered MDD post natally - Federal Agent Lalliard suffered a further relapse in 2017 when she was asked to re-examine and recall details of her experience in 2007 when she approached the 'Safe Place' unit instigated by the AFP after the Broderick enquiry.

   From what Federal Agent Lalliard reported to me and assessing the symptom formation - and now with the benefit of her response to treatment I am of no doubt Federal Agent Lalliard has severe MDD, her relapses precipitated by two major stressful experiences in her AFP service.[96]

   [96] Exhibit A6, Report of Dr Bruce Lean dated 7 June 2019, 4.

3. In relation to the factors he considers led to the Applicant’s injury or aggravation of injury, Dr Lean identified two factors:

   Firstly, the persistent harassment and bullying of her Sergeant in 2007 - highly threatening and controlling in nature.

   Secondly, the review in the Safe Place unit - undoubtedly added to by the lack of acknowledgement of her distress and the reported apparent indifference displayed by the AFP to her and fellow recipients of her protagonist's behaviour and attitude to them.[97]

   [97] Exhibit A6, Report of Dr Bruce Lean dated 7 June 2019, 4.

4. In his opinion, the Applicant’s employment with the AFP is ‘a significant contributing factor to her episodes of relapse of MDD.’[98]

   [98] Exhibit A6, Report of Dr Bruce Lean dated 7 June 2019, 4.

5. During his oral evidence at the hearing, Dr Lean was asked whether the Applicant’s condition is best described as a recurrence/relapse or exacerbation.  He said that this depends on whether a person has completely recovered from the first episode.

6. Dr Lean explained that when a person reviews an earlier event it often precipitates a reoccurrence of symptoms.  He said that just going over information can be enough of a reminder for there to be a relapse.  This is the view he formed on a clinical assessment of the Applicant.  He considers this to be a plausible explanation for the Applicant’s condition.

7. Dr Lean was asked his opinion about Dr Saboisky’s July 2018 report in which he attributes 75% of the Applicant’s condition to life stressors and 25% to workplace incidents.  Dr Lean stated that he would not put a percentage on the degree to which her condition is related to the workplace events as he does not consider it possible to do so.

8. Dr Lean explained that for a person who suffers from MDD, the more episodes they have the more likely they are to have future episodes or relapses. The person may relapse for no particular reason or trigger event.  It depends on where they are on the medical condition timeline.  In his opinion, the Applicant would react adversely to triggers as she has had three episodes of MDD requiring medication.

9. In his opinion, the Applicant suffered a relapse in 2017 when revisiting the complaint/reviewing the documents from the bullying in 2007.  This caused her to become unwell as she was ‘re-feeling’ the earlier bullying and re-experiencing the trauma from that time. 

   Dr William Knox, Consultant Psychiatrist

10. On 3 December 2018, the Applicant was assessed by Dr Knox at the request of the Applicant’s solicitors.  In a report of the same date, Dr Knox provided a diagnosis of the Applicant of Generalised Anxiety Disorder and Major Depressive Disorder in part-remission due to current medication. [99]

    [99] Exhibit A7, Report of Dr William Knox dated 3 December 2018, 5.

11. Dr Knox provided the following opinion in relation the Applicant’s condition and its relationship with her employment with the AFP:

    3.    It is my opinion that on the balance of probabilities your client has sustained injury in the course of her employment with the Australian Federal Police, initially, as detailed in this history, in 2007, and then again as a result of needing to access details of the earlier psychiatric injury, along with experiencing further stressful events in the AFP environment aggravating the re-emerged psychiatric disorders.

    4.    While there is a history of other stressor events in your client's life, these had resolved at earlier times, and I do not believe they play any significant part in your client's current poor mental health, as noted in this report. It may well be the case that these other events have sensitised your client in part to react negatively to the stressor events in the workplace, but it is clear that your client has suffered material, very significant stressors in the AFP workplace as noted in the history I give in this report. Your client's current poor mental health, and that in 2007, and subsequently, and then again reactivated in 2017, is due to the workplace factors, described above.

12. In his evidence to the Tribunal, Dr Knox said that, in his opinion, the reading by the Applicant in March 2017 of the material in the box in her office relating to the 2007 bullying led to a deterioration in her mental health.  Her illness ‘came to the fore again’ and she saw Dr Watson in April 2017.  In his view, it was highly probable the Applicant suffered an aggravation or re-emergence of a psychiatric disorder.  The recollection of thoughts and emotions from 2007 led to a relapse in her condition.

13. Dr Knox was asked whether the ceasing by the Applicant of her medication could have led to the relapse she experienced in March 2017.  He said that if there was to be an impact on her condition caused by the ceasing of medication it would have occurred earlier, that is, it would have been after two to five months.

14. During cross-examination, Dr Knox was asked about the significance of the fact the Applicant moved the box containing the materials relating to the 2007 bullying incident with her to three different workplaces.  He said this indicates the box and its contents were very important objects to the Applicant.  The re-reading by her of the materials in the box caused her to ruminate over past events and the emotions she experienced at the time.  In addition, there was the uncertainty of the new circumstances arising from the invitation to AFP members to raise issues with and provide information to Safe Place.  There was no way of the Applicant knowing how the process would go and what may be the outcome of any inquiry by Safe Place. Furthermore, there was the likely shame the Applicant would feel in having to go over past events again.  She was encouraged by the AFP to bring information forward.  When she did so, she became unwell.

15. Dr Knox explained that MDD can be episodic and that it is not necessarily organic but can be endogenous depression that ‘bubbles away’ and ‘comes and goes’.  Medication helps to keep the condition stable.  When the Applicant re-read the materials from the 2007 bullying she was ‘overwhelmed at an unconscious level’ leading to a ‘chemical reaction’.  It ‘spontaneously destabilised her internal processes’ being the functioning of the neuro-transmitters.

16. Dr Knox stated that, in his opinion, the Applicant was primarily made unwell because of the re-visiting of the workplace events and the rejection of the compensation claim and other difficulties in her life were secondary factors.  The workplace events affected the Applicant’s sense of identity and control and she felt a lack of agency or subordination.  They were a major intrusion into her identity, well-being and safety.

    SUBMISSIONS
    Applicant

17. The Applicant suffers a psychological condition, being Major Depressive Disorder, General Anxiety Disorder and/or an Adjustment Disorder with Anxious Mood, as diagnosed by Dr Lean,[100] Dr Knox,[101] Dr Saboisky,[102] and Dr Aldridge.[103]

    [100] Exhibit A6, Report of Dr Bruce Lean dated 7 June 2019, 3.

    [101] Exhibit A7, Report of Dr William Knox dated 3 December 2018, 5, question 2.

    [102] Exhibit R2, T11, 94, question 2; Exhibit R4, Report of Dr John Saboisky dated 6 July 2018, 5, question 2 and 6, question 5.

    [103] Exhibit A3, Summonsed documents from Dr Greg Aldridge, 8.

18. The events which led to and/or triggered the Applicant’s injury took place on 15 and 16 March 2017.  These events involved the Applicant considering whether to participate in the Safe Place process, meeting with and re-telling her story to Sergeant Bellicanta, reviewing, preparing and collating the information which she provided to Sergeant Bellicanta to give to Safe Place, and locating and providing further information to Safe Place.  These activities relating to her engagement in the Safe Place process were all done in the course of the Applicant’s employment.  As a consequence of these events, the Applicant suffered the psychological condition by at least 3 April 2017.  The Applicant’s motivation in engaging in the Safe Place process was to comply with the Commissioner’s directive to ‘call out bad behaviour’.

19. The Applicant’s condition may be characterised as an ‘injury’ in the primary sense (injury simpliciter) as the evidence of Dr Knox is that the incidents on 15 March 2017 resulted in an immediate chemical physiological change in the Applicant.

20. The Applicant's condition can be characterised as a ‘disease’ as it is an ailment or aggravation of such an ailment suffered by an employee within the meaning of disease in section 5B of the Act. The Applicant's ailment or aggravation of such an ailment was caused as a consequence of her re-living and/or re-visiting the circumstances of the bullying and harassment behaviours she was exposed to in her workplace by Jamieson in 2007.

21. The Applicant's ailment or aggravation of such an ailment was contributed to, to a significant degree, by her employment with the AFP being the interaction with Safe Place.  The contributing material factor does not have to be the sole contributing factor.

22. In relation to the factors in section 5B(2):

    (a)The Applicant has remained employed by the AFP from 2002 to present;

    (b)She has a pre-disposition to the condition but one of the causative factors of this pre-disposition is an injury sustained in the work environment in 2005.

23. There is no cogent evidence to support the Respondent’s submissions in relation to the alleged motives of the Applicant in her participation in the Safe Place program.  The Applicant sustained her injury at least by 3 April 2017, and any interactions by her with Safe Place after this date in relation to steps or investigations that were or may be instigated by Safe Place occurred after the date of injury.[104]

    [104] Applicant’s submissions dated 19 July 2019, [6].

24. There is no evidence that the Applicant’s participation in the Safe Place program was in any way inconsistent with its ‘purpose’ whether or not her motivations were those ascribed to her by the Respondent and/or that the Applicant’s participation was ‘impermissible’.[105]  The weight of the evidence makes it clear that the Applicant’s participation in the Safe Place program accorded at all times with its purpose and function.[106]  The consideration and investigation of previous PRS complaints and Comcare claims was part of the function and process employed by the AFP and Safe Place, particularly in relation to the allegations concerning Jamieson, and were prior to Safe Place formally contacting the Applicant.[107]

    [105] Applicant’s submissions dated 19 July 2019, [10].

    [106] Applicant’s submissions dated 19 July 2019, [12].

    [107] Applicant’s submissions dated 19 July 2019, [13].

25. An employee’s motives are not relevant to a determination of whether an employee’s actions/conduct comes within the relevant meaning of ‘employment’ in the SRC Act.[108]

    [108] Applicant’s submissions dated 19 July 2019, [14].

26. In so far as the Applicant’s injury is viewed as a ‘disease’, the tests of ‘arising out of’ or ‘in the course of’ her employment are not applicable.[109]

    [109] Applicant’s submissions dated 19 July 2019, [20].

    Respondent

27. The Applicant is seeking to re-visit issues which were the subject of her previous workers compensation claim in 2008, and were the subject of a determination by the Respondent on 29 November 2008.

28. The Respondent accepts that the Applicant has suffered an ‘ailment’ for the purposes of the SRC Act, being an episode of ‘major depressive disorder’ as diagnosed by Dr Saboisky. 

29. The evidence does not support a finding that the condition is an injury simpliciter.  The reaction of the Applicant to the events in March 2017 is not sufficient to ground a claim for injury simpliciter as it does not meet the Comcare and Mooi (1996) 69 FCR 439 (‘Mooi’) test and she did not see her GP until early April 2017.

30. What motivated the Applicant’s participation in the Safe Place process was an opportunity to re-ventilate the issues with respect to the behaviour of Jamieson in 2007.  She wanted the previous PRS investigation and Comcare claim to be re-investigated or re-agitated.  Her motivations in engaging in the Safe Place process were to ‘seek justice’. This is not a matter that is an incident of her employment and does not fall within section 5A: Federal Broom v Semlitch (1964) 110 CLR 286 (‘Semlitch’).  What the Applicant wanted from Safe Place was not the purpose for which it was established. The use by the Applicant of Safe Place ‘was inconsistent with its purpose and impermissible’.  This ‘was sufficient to take the actions and her response outside of her employment.’[110]

    [110] Respondent’s submissions dated 16 July 2019, [5].

31. In relation to causation there must be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal.[111]  As a matter of common sense, if the Applicant did not harbour the feeling she did with respect to the treatment of her by Jamison in 2007 and the way in which the 2008 PRS inquiry and the Comcare claim were handled, she would not have had any response in the nature that she did in March 2017.  The injury occurred in 2007 and this is the experience of symptoms; the mere reading by her of the materials from 2007 did not cause the injury.

    [111] Respondent’s submissions dated 16 July 2019, [8].

32. The Applicant’s employment must be a contributing factor in that it is not merely the fact the employee is employed but what the worker does in his or her employment.  It is not sufficient for the Applicant to contend that she suffered injury captured by the Act merely by reason of her being at work when she complains of injury or by participating in a process being undertaken by her employer, if it is found that her participation was for some other purpose that she was not employed to do.[112]  The contributing factor must be either some event or occurrence in the course of the employment or some characteristic of the work performed, or the conditions in which it was performed or an incident of the employment.

    [112] Respondent’s SFIC, [9].

33. The reading of the documents from 2007 would not have the capacity to materially, let alone significantly, contribute to the Applicant’s condition.  The root cause of the Applicant’s condition in 2017 was the cause for her presentation at the time of her earlier 2008 claim, namely the damage caused to her by Jamieson’s bullying in 2007.  The damage this caused was ongoing in that it affected her mental health and her career in the years following.  The damage inflicted by Jamieson impacted ‘all of the corners of her life’ and required her to have long-term contact with her doctor and regular medication.  It also led to set-backs in her career progression.

34. Even if there is a causal connection between the workplace events and her injury there is not a significant contribution.  The significant factors that contributed to her condition were the Applicant’s very fragile state, the problems with her home life and her lack of career advancement.

    CONSIDERATION AND REASONS

35. The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it.  The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. 


    (1)Did the Applicant suffer an ‘injury’ as defined in s 5A of the SRC Act, and specifically, are the claimed conditions:

    (a)       an ‘injury (other than a disease)’ as defined in s 5A(1)(b) of the Act; or

    (b)      a ‘disease’ as defined in s 5A(1)(a) and s 5B(1) of the Act

36. The first issue for the Tribunal’s consideration is whether the claimed conditions for which the Applicant seeks compensation can be considered an ‘injury (other than a disease)’ or a ‘disease’ for the purposes of the SRC Act.

    Distinction between an ‘injury simpliciter’ and a ‘disease’

37. The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is important because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’), French CJ, Kiefel, Nettle and Gordon JJ at [42]), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’: May per French CJ, Kiefel, Nettle and Gordon JJ at [44].

38. An ‘injury simpliciter’ is contrasted with a ‘disease’, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486 (‘Burch’); Prain v Comcare [2016] AATA 459 (‘Prain (AAT)’) at [7]-[8].

39. Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (‘Kennedy Cleaning’), ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’ at [22]. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’: Kennedy Cleaning per Gleeson CJ and Kirby J at [39].

    What is an ‘injury simplicter’?

40. In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ at [52]. Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.

41. French CJ, Kiefel, Nettle and Gordon JJ in May emphasised that ‘suddenness’ will not always be necessary for there to be an ‘injury (other than a disease)’. Their Honours stated that suddenness may nevertheless be ‘useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease’ at [47]. Their Honours cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 with approval:

    The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.”[113]

    [113] May at [34] citing (2015) 233 FCR 397 at 444 [205]-[207].

1. Their Honours went on to state, ‘subjectively experienced symptoms, without an accompanying physiological or psychiatric change’ are not sufficient to be a disease or an injury at [57]. That is, merely ‘feeling unwell’, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is ‘physiological evidence, pathology or a known diagnosis to explain the symptoms’: Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in May per Gageler J at [82].

2. An injury can include a ‘sudden physiological change resulting from a disease’: Kennedy Cleaning, per Gaudron J at [50]. Similarly, Gleeson CJ and Kirby J stated, ‘the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case.” Kennedy Cleaning at [36].

3. Whether a psychological condition is an ‘injury (other than a disease)’ or a ‘disease’ was discussed by the Full Court of the Federal Court in Prain v Comcare (2017) 256 FCR 65 (‘Prain’). The Full Court commented at [74] that ‘… whether or not a mental illness is to be categorised as a “disease” or, alternatively, an “injury (other than a disease)” will depend on the nature and incidents of the psychological change.’ The Court also commented, with respect to the timing of the onset of a condition, that ‘suddenness is “often useful”, particularly in distinguishing the physiological change from the natural progression of a disease, although suddenness is not a prerequisite to a finding of injury at [73].

4. Consequently, although psychological injuries are often categorised as a ‘disease’ by the Tribunal and the courts (see Prain at [71]), the Tribunal should consider the facts and circumstances of each individual case to reach a decision as to into which category a psychological injury falls.

   Are the claimed conditions an ‘injury simplicter’?

5. The Applicant’s evidence is that when she reviewed the 2007 materials in March 2017 she ‘felt panicked, was shaking, crying and felt nauseous’ and when she spoke to Sergeant Bellicanta she ‘started to tear up and ended up crying’.  Sergeant Bellicanta observed that she ‘appeared upset, helpless and in need of genuine professional support.’  The Applicant first consulted her general practitioner, Dr Watson, on 3 April 2017.  The evidence of Dr Knox is that when the Applicant re-read the materials from the 2007 bullying of her by Jamieson she was ‘overwhelmed at an unconscious level’ leading to a ‘chemical reaction’. The reading of these materials ‘spontaneously destabilised her internal processes’ being the functioning of the neuro-transmitters. 

6. The Tribunal finds, on the basis of the Applicant’s evidence and the relevant medical evidence before it, that the Applicant did not sustain an ‘injury’ under s 5A(1)(b) of the SRC Act. There is inadequate evidence to support a finding, as required in the words of the High Court in May, that the Applicant suffered ‘something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’.[114]  As the Court emphasised, ‘subjectively experienced symptoms, without an accompanying physiological or psychiatric change’ are not sufficient to be a disease or an injury at [57]. That is, merely ‘feeling unwell’, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is ‘physiological evidence, pathology or a known diagnosis to explain the symptoms’. 

   [114] May at [75].

7. In the Tribunal’s view, the Applicant’s claimed conditions best accord with the definition of a ‘disease’ within the meaning of s 5A(1)(a) and s 5B(1)(a) of the SRC Act. This is because the Applicant’s reported symptoms were predominantly of an emotional nature and not due to any sudden or identifiable physiological change, and are therefore more akin to the natural progression of a disease. Furthermore, as discussed below, the claimed conditions satisfy the definition of an ‘ailment’ within the meaning of s 4(1) of the SRC Act.

   Are the claimed conditions a ‘disease’?

8. The second issue for consideration in determining whether the Applicant suffered an ‘injury’ as defined under s 5A(1) of the SRC Act is whether she suffered from a ‘disease’ for the purposes of s 5A(1)(a) of the SRC Act and specifically whether this was, under s 5B(1)(a) of the SRC Act, ‘an ailment … that was contributed to, to a significant degree, by [her] employment’.

   What is a ‘disease’?

9. In contrast to an ‘injury simpliciter’, a ‘disease’ can be described as a change in underlying pathology. In Kennedy Cleaning, Gleeson CJ and Kirby J said at [40]:

   The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense.

10. The meaning of ‘disease’ was considered by the Federal Court in Mooi. At the time of the decision, s 5B had not been enacted and the definitions of ‘disease’ and ‘ailment’ were found in s 4(1) of the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting at [10]:

    By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.

11. Referring to the ordinary meanings of the word ‘disease’ as well as the meanings given in medical dictionaries, Drummond J concluded at [16]:

    Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.

12. In Vo and Comcare [2005] AATA 773 (‘Vo’) Senior Member Constance (now Deputy President Constance) and Member Miller discussed the meaning of an “ailment”, at [54]:

    The definition of “ailment” is very broad... The terms “ailment” and “morbid condition” both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of “disease” in the Act. In context the words “disorder” and “defect” should be interpreted accordingly. The definition of “ailment” in section 4 is somewhat circular as it includes the word “ailment”
     within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of “ailment” includes “a morbid affection of the body or mind” and “morbid” includes “affected by, proceeding from, or characteristic of disease.”

    Did the Applicant suffer a ‘disease’?

    (i)  Were the claimed conditions an ‘ailment’ or ‘aggravation’ as defined by s 4 of the Act?

13. The Respondent accepts and the Tribunal finds on the basis of the evidence before it, specifically the medical evidence, that the Applicant suffered from psychological conditions, and these satisfy the definition of an ‘ailment’ in s 4(1) of the SRC Act in that they are a ‘defect’ or ‘disorder’ of ‘gradual development’.

14. In the Tribunal’s view, given the broad and circular definition of an ‘ailment’ which includes ‘a morbid affection of the body or mind’ (Mooi) and which ‘is intended to cover the whole range of physical and mental illnesses from major to minor ones’ (Vo), the Applicant’s claimed conditions can be characterised as an ‘ailment’ under s 4(1) of the SRC Act.

15. For the ‘ailment’ to be a ‘disease’ for the purposes of s 5B(1) of the SRC Act it must have been ‘contributed to, to a significant degree by the employee’s employment.’

    (ii) Were the claimed conditions contributed to by the Applicant’s ‘employment’?

16. At the outset of the case, the Respondent indicated that it was no longer pressing its argument that the Applicant’s involvement with Safe Place does not constitute ‘employment’.[115]  However, it argued that if Safe Place was a vehicle used by the Applicant for a purpose for which it was not established, then the engagement by the Applicant with Safe Place was not an incident of her employment.  The Respondent argued that because it was ultimately determined by Safe Place that the outcome the Applicant was seeking was not within its remit, then the Applicant’s motivation in seeking an outcome which could not be provided by Safe Place took her actions outside the scope of her employment, and accordingly there could be no employment contribution to her condition. 

    [115] Respondent’s SFIC, [5].

17. The term ‘employment’ as used in s 5B of the SRC Act, is not defined anywhere in the legislation. With reference to historical authority, the Respondent submits that the scope of ‘employment’ in s 5B should be limited to that which a person ‘is employed to do and what is incident to it’, and to the work the employee ‘was reasonably required, expected or authorised to do in order to carry out [their] duties’.[116] According to the Respondent, ‘employment’ in the context of the SRC Act is what an employee is required to do in his or her occupation and not the fact of being employed: Semlitch.  The Applicant’s ‘employment’ therefore only extends to the actual work (or duties or service) for which she is engaged or is required to perform and what is reasonably incidental to that work.

    [116] Respondent’s submissions [6]-[7] citing Lord Finley LC in Charles R Davidson & Co v M’Robb [1918] AC 304 at 314; and Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at [3].

18. The Applicant argues that in so far as the Applicant’s conditions are viewed as a ‘disease’, the tests of ‘arising out of or in the course of’ employment and the authorities relevant to this test in relation to ‘injury’ in s 5A of the Act are not applicable to the interpretation of the term ‘employment’ in s 5B. In Semlitch, Windeyer J noted that the contributing factors must be ‘either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it is performed.’  A condition or characteristic of the Applicant’s employment is the provision of the Safe Place process, and her actions on 15 and 16 March 2017 related to engaging with that process.

19. In Re Pettiford v Comcare (2014) 139 ALD 411 (‘Pettiford’), the Tribunal considered the meaning of the phrase ‘the employee’s employment by the Commonwealth’ in s 5B of the SRC Act. Senior Member Britton had regard to the judgments of Kitto J (with whom Taylor and Owen JJ agreed) and Windeyer J in Semlitch, and noted that the High Court found that establishing a threshold for determining that ‘employment was a contributing factor’ for a claimed injury involved identifying or demonstrating ‘some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed.’ at [92] (emphasis in original).  Further, the Tribunal found it is necessary to be able to identify ‘some event or occurrence in the course of the [Applicant’s] employment or some characteristic of the work performed or the conditions in which it was performed.’ at [92]. In Pettiford, the Tribunal inferred from the judgments in Semlitch that the concept of ‘work’ cannot be regarded as a ‘neutral term’.

20. The phrase ‘the employee’s employment’ as used in s 5B(1) of the SRC which defines ‘disease’ is not qualified by the phrase ‘arising out of, or in the course of’ as it is in s 5A(1)(b) of the Act. Accordingly, the authorities relied on by the Respondent that construed the meaning of ‘arising out of’ and ‘in the course of’ or a combination of these phrases are not relevant to the construction of s 5B(1): Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; Charles R Davidson & Co v M’Robb [1918] AC 304; MRCC v Roberts [2007] FCA 1.

21. Even adopting a narrow construction of the term ‘employment’ in s 5B(1) favoured by the Tribunal in Pettiford, the Tribunal finds that the Applicant’s engagement in the Safe Place process was a ‘state of affairs to which she was exposed in the performance of [her] duties and to which [she] would not otherwise have been exposed’.  The establishment of Safe Place was an initiative of Commissioner Colvin as a mechanism for the implementation of the recommendations of the Broderick report.  The description of Safe Place emphasises that it is intended as a process to provide ‘holistic support and advice’ for AFP members to raise issues of concern ‘connected to the workplace’:

    Safe Place is ‘victim focused’ and provides holistic support and advice if you are experiencing, have experienced or are aware of sexual assault, sexual harassment, serious bullying and harassment within or connected to the workplace.[117]

    [117] Exhibit R3, 144.

22. This description makes clear that the Safe Place process was created as an ‘in house’ counselling and advice service for AFP members to raise issues related to bullying, harassment and assault within their workplace.  The purpose of Safe Place was to provide support and advice for AFP members and to give them ‘an opportunity to be heard’ and to be ‘provided with various options’ to assist them ‘with a way forward’.  The range of ‘resolution options’ included, but were not limited to, reporting of incidents with no further action, mediation, referral to Professional Standards or criminal investigation.[118]  There was no requirement that a AFP member have a ‘purpose in mind’ when they approached Safe Place which needed to correspond with a list of pre-determined fixed outcomes that Safe Place could offer a member.  When the Applicant engaged with Safe Place she could not have known what, if any, outcome might emerge from the process.

    [118] Exhibit R3, 144.

23. On the basis of the evidence before it, the Tribunal is satisfied that the Applicant’s claimed conditions were contributed to by her employment, as her employment encompassed her engagement with the AFP Safe Place process.

    (iii) Was the employment contribution ‘significant’?

24. As Mortimer J noted in Comcare v Reardon [2015] FCA 1166 at [75] ‘… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it’.

25. In Comcare v Power (2015) 238 FCR 187 (‘Power’), Katzmann J discussed the meaning of ‘to a significant degree’ in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’ at [78], and further at [82] that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’.

26. Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be ‘a contributing factor to the disease’. The current definition in s 5B of the SRC Act which requires the employment to have contributed “to a significant degree” was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated at [93]:

    There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.

27. In Reardon and Comcare [2015] AATA 360 at [37] Member Taglieri summarised the meaning of ‘contribution to a significant degree’ as follows:

    I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.

28. In Su v Comcare [2011] AATA 934 at [5] Member Webb expressed the requirement of ‘contribution to a significant degree’ as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn (2007) 156 FCR 536:

    When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. (Footnotes omitted).

29. Decisions of the courts and of this Tribunal have consistently found that some factors are too remote and cannot be said to be related to an employee’s employment. In Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 (‘Tzikas’) Sweeny and Woodward JJ, in a joint judgment stated (at 195) that:

    … we believe that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by the employment. Such considerations are as remote from the employment as the other factors, such as relief at not having to work, dealt with earlier.

30. In Prain (AAT), Deputy President Humphries, citing Tzikas, stated at [63]:

    In determining whether resentment towards Comcare or the Canberra Hospital in relation to the conduct of litigation seeking compensation can weigh as a compensable factor, it is important to identify the true source of the resentment. Reactions – or indeed overreactions – to events in the workplace, if they are properly regarded as sequelae of an applicant’s employment, are part and parcel of the original injury, but it is well established that anger and frustration towards a respondent in resolving a legal claim for that injury is not.

31. Deputy President Humphries in Prain (AAT), continued on as follows:

    In Plumb and Comcare [2004] AATA 999 the Tribunal considered a workers compensation claim for a condition based partly on a non-work-related disorder and partly on anger towards Comcare. The medical evidence suggested that:

    ... Mr Plumb’s employment was the initial contributing factor to the anxiety disorder. However since that time the causative factor had become Mr Plumb’s involvement in the proceedings, and the Department’s approach to those proceedings.

    The Tribunal also noted a need for vindication and justification. It went on to find that the contribution to his condition made by the stress of the litigation afforded Mr Plumb no basis for compensation.

    (Footnotes omitted.)

32. In Hutchinson and Comcare [2018] AATA 4357, after discussing relevant authorities, including the decisions in Tzikas and Prain (AAT), Deputy President Boyle stated that factors such as the stress and anxiety of litigation and a perception of not being treated fairly were not factors relating to employment at [122]:

    In the present case it seems that a considerable contributor to, even possibly a dominant cause of, the Applicant’s present mental condition is the stress and anxiety caused by the many Federal Court and AAT actions that the Applicant has, in her view, been required to undertake, and is still undertaking, to receive the compensation to which she sees herself entitled. It is also clear from the very lengthy submissions made by the Applicant in these proceedings and her communications with the Tribunal registry, that she sees herself as being mistreated, or at least not treated fairly, by Comcare and the legal system. These factors all seem to be significant contributors to the Applicant’s mental condition. As the above cited cases establish, these are not factors that relate to the Applicant’s employment by the Respondent for the purposes of s 5B(1) of the
    SRC Act.

    Was the ailment ‘contributed to, to a significant degree’, by the Applicant’s employment?

1. The Tribunal has had regard to the evidence before it and the relevant authorities cited above, and finds for the reasons detailed in the following paragraphs that the Applicant suffered a ‘disease’, defined as an ‘ailment’ that was ‘contributed to, to a significant degree’, by her employment.

2. The medical experts agree that the ‘trigger’ for the Applicant’s ailment diagnosed in April 2017 was the reading by her of the materials relating to the bullying of her by Jamieson in 2007.  Dr Saboisky opines that this was ‘the only trigger’ for the Applicant’s bout of depression at this time.  Dr Lean agrees that the reviewing of these materials precipitated a recurrence of symptoms and led to the Applicant’s ailment. Dr Knox concurs that the recollection of her thoughts and emotions from 2007 as a result of accessing the details of these events, led to a relapse in the Applicant’s condition in April 2017.

3. Dr Knox and Dr Lean agree that the engagement with the Safe Place process by the Applicant was a significant contributor to the Applicant’s ailment.  According to Dr Lean, the Applicant’s employment is ‘a significant contributing factor to her episodes of relapse of MDD’.[119]  Dr Knox concurs that the Applicant was ‘primarily’ made unwell because of the revisiting of the 2007 workplace events.  In his view, the Applicant’s disappointment at the rejection of the 2008 Comcare claim and other difficulties in the Applicant’s life were merely secondary factors.  Dr Saboisky’s opinion is that the reading of the materials from 2007 was a 25% contributing factor to the Applicant’s ailment, however he accepted that some of the 75% contribution to her ailment includes the 2008 compensation claim and PRS investigation which were the subject matter of the materials reviewed by the Applicant during her engagement with Safe Place in 2017.

   [119] Exhibit A6, Report of Dr Bruce Lean dated 7 June 2019, 4.

4. On the basis of the evidence before it, the Tribunal finds that the Applicant’s employment, specifically her engagement with the Safe Place process, contributed to a significant degree to her ailment.  Whereas the Applicant was clearly heavily emotionally invested in what she perceived as the unfair treatment of her in 2008, including the rejection of her Comcare claim and the dismissal of the PRS investigation, it was her engagement in the Safe Place process in 2017 that was the primary trigger for the onset of her ailment.

5. In making this finding, the Tribunal has had regard to the medical evidence before it that the Applicant, as Dr Saboisky noted, had ‘a clear cut gap of 12 months before the development of depression in April 2017.’ The Applicant had ceased taking anti-depressants, and the period within which a relapse may occur when such medication is ceased had passed. Therefore, whereas the Applicant had residual anger and resentment about her treatment by her employer in 2008, it was her engagement in the Safe Place process that contributed significantly to the onset of the ailment in April 2017.

6. Accordingly, the Tribunal is satisfied on the balance of probabilities that the Applicant’s workplace duties contributed, to a significant degree, to her ailment in order to satisfy the definition of ‘disease’ in s 5B(1) of the SRC Act.

   Contribution of other factors to the ailment suffered

7. For the avoidance of any doubt, the Tribunal has had regard to the factors in s 5B(2) of the SRC Act which the Tribunal ‘may’ take into account.

   (a)Duration of employment

8. The Applicant has been employed by the AFP as a permanent employee since 2002.  She is an experienced police officer with many years working in an environment associated with hierarchy and respect for superior officers.  The longevity of her employment is a relevant factor to the Applicant’s ailment as she would have developed some resilience to authoritative behaviour by her supervisors and other colleagues and an understanding of AFP processes established for the welfare of members such as Safe Place.

   (b)Nature of, and particular tasks involved in, the employment

9. The Safe Place process was established as a vehicle to facilitate the airing of concerns by AFP members of workplace bullying, harassment and other unacceptable behaviour.  The process by its very nature is designed to encourage members to ‘call out bad behaviour’ and is therefore a factor to be given some weight in assessing the contribution of her employment to the Applicant’s ailment.

   (c)Any predisposition of the employee to the ailment or aggravation

10. The Applicant had a pre-disposition to the ailment in that she has a long history of suffering depressive illnesses beginning when she suffered post-natal depression following the birth of her daughter.  One of the Applicant’s psychological illnesses was the subject of a compensation claim in 2005 for an injury she sustained in her employment.  Her pre-disposition to psychological illness is therefore a relevant factor in considering the contribution of the Applicant’s employment to her ailment. 

11. The Tribunal finds that while this is a contributing factor to the Applicant’s ailment, it is not such as to diminish the significance of the contribution of her employment to her ailment, specifically her engagement with Safe Place.

    (d)Any activities of the employee not related to employment

12. There are no non-work related activities relevant to the Applicant’s ailment other than the health matters detailed in c) above and e) below.

    (e)Any other matters affecting the employee’s health

13. The evidence before the Tribunal is that the Applicant has a history of overindulgence in alcohol although she has not been diagnosed with alcohol use disorder.  However this condition is not related to the particular employment that triggered the ailment in 2017, namely the engagement in the Safe Place process, and therefore is not a relevant contributing factor.

14. On the basis of the evidence before it, the Tribunal is satisfied that the Applicant’s ailment was contributed to, to a significant degree, by her employment by the AFP.  Accordingly, her ailment is a ‘disease’ as defined by s5B(1) and it follows that she suffered an ‘injury’ as defined by s 5A(1)(a) of the SRC Act .

    CONCLUSION

15. The Tribunal finds, for the reasons outlined above, that the Applicant suffered an ‘injury’ within the meaning of s 14 of the SRC Act. The Respondent is therefore liable to pay compensation to the Applicant for the injury.

    DECISION

16. The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

17. The Tribunal awards the Applicant costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

I certify that the preceding 179 (one-hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

………………………………………

Associate

Dated: 24 December 2019

Date(s) of hearing:	8-10 July 2019
Date final submissions received:	19 July 2019
Counsel for the Applicant:	Mr Karl Pattenden
Solicitor for the Applicant:	Ms Jana Pennington and Ms Sophie McKenzie, Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr Matthew Gollan
Solicitors for the Respondent:	Mr Scott Moloney, Moray & Agnew Lawyers