Lloyd's Ships Holdings Pty Ltd v Davros Pty Ltd
[1987] FCA 70
•26 FEBRUARY 1987
Re: COMMONWEALTH OF AUSTRALIA
And: VICTOR PISANI and RITA PISANI
No. G252 of 1985
Workers' Compensation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Evatt J.
CATCHWORDS
Workers' Compensation - commonwealth Employee - Employed at munitions factory - Blow to head of employee by bomb cap - Physical injury not incapacitating - Blow to head causing employee to suffer an aggravation, acceleration or recurrence of a depressive state - Whether s.27 or s.29 of Compensation (Commonwealth Government employees) Act applies - Whether there was any evidence before the Tribunal to satisfy a finding made under s.29(3) of the Act that no wilful and false representation was made - Whether any evidence before the Tribunal as to the finding that the employee was totally incapcitated for work pursuant to s.26 of the Act - Matter remitted to Commissioner for reconsideration in accordance with directions given by Court.
Compensation (Commonwealth Government Employees) Act 1971, ss. 5, 26, 27, 29, 45.
Administrative Appeals Tribunal Act 1975, s.44.
Favelle Mort Limited v Murray (1976) 133 CLR 580.
Commonwealth v Whillock (1983) 48 ALR 433.
Hockey v Yelland (1985) 157 CLR 124.
Re Ellis and Commonwealth of Australia (1985) 3 AAR 146.
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598.
Delahunty v Commonwealth (1981) 53 FLR 9.
Australian Telecom Commission v King (1985) 5 FCR 42.
HEARING
SYDNEY
#DATE 26:2:1987
Counsel for the Applicant: Mr R.B. Wilson
Solicitors for the Applicant: Australian Government Solicitor, Sydney
Counsel for the Respondents: Mr M.B. Smith
Solicitors for the Respondents: Australian Legal Aid Office, Sydney
ORDER
That the determinations of the Delegate of the Commissioner appointed under the Compensation (Commonwealth Government Employees) Act 1971 (the Act) in respect of Victor Pisani (the employee), dated 18 May 1983 and 16 December 1983, be set aside.
That the matter be remitted to the Commissioner for determination in accordance with the following directions:
(i) That personal injury arising out of or in the course of his employment was caused to the employee on 31 March 1981, namely a blow to the head;
(ii) That as a result of the said blow to the head, the employee suffered an aggravation, acceleration or recurrence of an anxiety depressive illness, a disease within the meaning of the Act;
(iii) That the employment of the employee by the Commonwealth was a contributing factor to the aggravation, acceleration or recurrence of the said disease;
(iv) That in accordance with the provisions of s.26 of the Act the employee should be deemed totally incapacitated for work;
(v) That such total incapacity for work of the employee resulted from the aggravation, acceleration or recurrence of the said disease;
(vi) The aggravation, acceleration or recurrence of the said disease is deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth in accordance with s.29(2)(f) of the Act;
(vii) Calculations of compensation shall be made in accordance with s.45 of the Act for total incapacity.
(viii) The commencement of the period of total incapacity and the duration thereof are to be determined by the Commissioner in accordance with these directions and any further evidence that might be available.
(ix) The question of any dependency governing the appropriate rate of compensation is also to be determined by the Commissioner.
The applicant pay the respondents' costs of and incidental to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.
JUDGE1
Before the Court is an appeal brought by the Commonwealth pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 from a decision of the General Administrative Division of the Administrative Appeal Tribunal constituted by Mr J.O. Ballard, Mrs J.H. McClintock and Dr H.D. Browne made on 2 August 1985 wherein the Tribunal determined that two determinations in favour of the abovenamed first respondent, Victor Pisani (the employee) made by Delegates of the Commissioner for Employees' Compensation under the Compensation (Commonwealth Government Employees) Act 1971 (the Act) on 18 May 1983 and 6 December 1983 should be set aside and the matter remitted to the Commissioner with the following directions:
(i) that personal injury, arising out of or in the course of his employment, was caused to the employee on 31 March 1981, namely a blow to the head;
(ii) as a sequel to (such) personal injury the employee suffered an aggravation of an underlying disease, namely mixed anxiety depressive illness;
(iii) in accordance with the provisions of section 27 of (the Act), the Commonwealth is liable to pay compensation in respect of the said personal injury;
(iv) in accordance with the provisions of section 26 of (the Act), the respondent is deemed totally incapacitated for work and he is entitled to compensation for total incapacity under section 45 of the Act.
Section 44 of the Administrative Appeals Tribunal Act 1975 provides the present appeal be on a question of law only.
The questions of law raised on the appeal as set out in the Notice of Appeal are:
(a) whether the Tribunal made findings of fact in support of which there was no evidence before it;
(b) whether the Tribunal properly construed and applied sections 5 (the definition of injury), 27, 29, 45 and 46 of (the Act)
(c) whether the Tribunal made findings that it was required to make before giving a direction as to the application of section 26 of the Act.
The orders sought in such notice read:
(a) that this appeal be allowed;
(b) that the decision of the Tribunal be set aside;
(c) that the determinations of the Commissioner for Employees Compensation on 18 May 1983 and 6 December 1983 be set aside;
(d) such other orders as the Court may think fit.
the grounds of the appeal therein being:
(a) that the Tribunal erred in law in that it failed to construe, and to so apply, the definition of "injury" in section 5 of the Act as requiring the exclusion, from the meaning of "injury", of disease or the aggravation, acceleration or recurrence of a disease;
(b) that the Tribunal erred in law in that it construed, and so applied, the definition of "injury" in section 5 of the Act so as to include the aggravation, acceleration or recurrence of a disease;
(c) that the Tribunal erred in law in that if it had properly directed itself as to the meaning of the word "injury" as defined in section 5 of the Act it was not open to it, on the material before it, to conclude that the respondent suffered an injury within the definition of that word;
(d) that the Tribunal erred in law in that upon the material before it, it was required to apply the provisions of section 29 of the Act, and to be satisfied as to the requirements specified therein, whereas it failed to do so;
(e) that the Tribunal erred in law in that it:
(i) failed to distinguish, for the purposes of section 27 of the Act, between the injury constituted by the blow to the head in March 1981 and the injury constituted by the aggravation of the respondent's underlying mixed anxiety depressive illness;
(ii) and it thereby failed to distinguish for the purposes of sections 45 and 46 of the Act the separate incapacities (for work) resulting from each such injury.
(f) that the Tribunal erred in law that it was not open to it, on the material before it, to find that any incapacity for work resulted from the injury constituted by the blow to the head;
(g) that the Tribunal erred in law in that upon the material before it the only finding open to it was that the provisions of section 29(3) of the Act had been satisfied;
(h) that the tribunal erred in law in that before giving the direction in paragraph 27(iv) of its reasons for decision it should have considered, and have been satisfied as to the requirements of, section 26 of the Act which it failed to do so.
(i) that the tribunal erred in law in that it was not open to it, on the material before it, to find that the requirements of section 26 of the Act had been satisfied.
Pursuant to notice of motion dated 15 April 1986 brought by Rita Pisani as the widow of Victor Pisani, the Court ordered that the said Rita Pisani be added as a second respondent to the appeal to represent the estate of the first respondent for the purposes of the appeal, the Court being satisfied that the first respondent had died on or about 9 April 1986 in circumstances set out in the affidavit of Rita Pisani sworn 18 April 1986. There is no evidence before the Court that the death of the employee was or was not related to the injury or the disease being considered on this appeal and it is not to be taken that the Court has any view in that regard.
The employee was born on 27 December 1950 and migrated to Australia from Malta in 1965. At all relevant times, he was married to the second named respondent, Rita Pisani.
On 17 November 1980 the employee commenced employment with the Commonwealth of Australia within the Department of Industry and Commerce at the Munitions filling factory at St Marys, NSW, he having filled in and signed a medical questionnaire dated 14 November 1980 prior to his engagement.
The Tribunal found as a fact that the employee suffered a physical injury in the course of his employment with the Commonwealth on 31 March 1981 when, on unscrewing the cap from a bomb, the cap slipped striking him on his head. He reported the incident but did not take any time off work until 29 May 1981 when he saw his local general practitioner, Dr Venkatarama. He was later referred by that doctor to the Northside Clinic, a psychiatric hospital in the North Sydney area, where he was an in-patient for about one week in late July 1981 under the care of Dr Saboisky. Whilst at that clinic, he was seen on one occasion by a Dr Glass. In early August 1981, after his discharge from the Clinic, he was found in a disused building in a deeply comatosed state and taken to Westmead Hospital and treated by a psychiatrist, a Dr Robertson. He did not return to work after 29 May 1981 and on 4 August 1981 his employment was terminated by the Commonwealth.
The Tribunal, in its Reasons for Decision stated, in paragraphs 21 and 22 as follows:
21. On all the evidence we conclude that the respondent
(employee) had a pre-existing condition of a depressive illness, that the incident in March did occur and that it precipitated a chain of events. We have no doubt that other factors were also relevant but we are satisfied and find as a fact that the incident in March 1981 was a contributing factor to the development of the respondent's depressive disease leading to the incapacity which he suffered (sub-section 5(11) of the Act).
22. It is thus necessary to consider the provisions of sections 27 and 29 of the Act to decide whether this is properly an injury or disease case and whether the specific exemptions applying to those sections apply.
Relevant sections of the Act are:
S.27(1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
S.29(1) Where -
(a) an employee ... suffers an aggravation, acceleration or recurrence of a disease; and
(b) any employment of the employee by the Commonwealth was a contributing factor ... to the aggravation, acceleration or recurrence, as the case may be, whether or not ... the aggravation, acceleration or recurrence was suffered in the course of that employment.
the succeeding provisions of this section have effect.
(2) If -
(a) - (d) ... or
(e) the total or partial incapacity for work of the employee,
results ... from the aggravation, acceleration or recurrence of the disease then for the purposes of this Act unless the contrary intention appears,
(f) ... the aggravation, acceleration or recurrence as the case may be shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth; and
(g) ... the date of the commencement of the incapacity ... shall be deemed to be the date of the injury.
(3) The last preceding sub-section does not apply in relation to ... an aggravation, acceleration or recurrence of a disease if the employee has at any time for the purposes connected with his employment or proposed employment by the Commonwealth made a wilful and false representation that he did not suffer or had not previously suffered from that disease.
S.5(1) In this Act, unless the contrary intention appears -
"injury" means any physical or mental injury and includes the aggravation, or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease; (emphasis added)
"disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development;
S.5(11) (a) the ... incapacity or disablement of an employee ... shall be taken to have resulted from an injury to the employee ... or from an aggravation, acceleration or recurrence of a disease suffered by the employee if the injury, ... or the aggravation, acceleration or recurrence, as the case may be, contributed to the ... incapacity (or) disablement.
The Tribunal in paragraph 23 of its reasons then made reference to three cases which the Court as presently constituted understands set out principles which the Tribunal believed formed a basis on which the Tribunal founded its determination that s.27 of the Act and only s.27 applied to the matter. Part of paragraph 23 reads:
23. In Re Ellis and Commonwealth of Australia (3 AAR 146), this Tribunal had to consider the definition of injury and disease contained in sub-section 5(1) of the Act. On page
(154) the Tribunal said:
'It seems to us that the effect of those words is to produce the same result as was found by the High Court to apply to the Queensland Act in Hockey's case (1985) 59 ALJR 66; (1985) 157 CLR 124. That is to say that if an injury does amount to a disease or the aggravation acceleration or recurrence of a disease it is excluded from the definition of the injury notwithstanding that it would have been an injury in the enunciation of Fullagar J in Hornsby's case (103 CLR 588) based on the decided cases. It seems to us proper to regard the anuerism, the rupture of which lead to the stroke as encompassed within the words "disorder, defect or morbid condition" in the definition of disease. It is therefore excluded from the meaning of the word injury by the definition of that word'.
However Hockey v Yelland was concerned with the definition of injury under the Queensland Act which, as in the New South Wales Act, is inclusive of a disease. Moreover that matter concerned the rupture of an aneurism leading to a stroke. It did not, as this matter does, concern an incident caused or exacerbated by an external stimulus. In Hockey's case Gibbs CJ said:
'I see no reason to doubt the correctness of the construction placed upon the definition in those cases, but even if, contrary to my view, a disease which is not autogenous, but is caused or exacerbated by an external stimulus, can come within the description of injury simpliciter and so within the opening words of the definition, it is clear that an autogenous disease which happens to manifest itself in the course of employment is only an "injury" if it comes within par. (a) or par.
(b).'
The Tribunal then made reference to the High Court decision in Favelle Mort Limited v Murray (1976) 133 CLR 580, particularly the reasons of Mason J (as he then was) at p 597, before expressing the following view in paragraph 24:
24. We do not think that any injury must be treated as a disease if the injury acted upon a disease, however insignificant, to produce a compensable result. It seems to us that this matter should be treated as an injury and that in dealing with that injury the employer must take the employee as he finds him. (Emphasis added).
It is clear from those reasons that the Tribunal found that there was a nexus between the blow to the head, clearly a physical injury within the meaning of "injury" in the Act, and the development of the employee's "depressive disease" and that such disease was a sequela of the physical injury sustained.
It is also clear that the evidence before the Tribunal was such that it was opened to the Tribunal to find that the employee on 31 March 1981 sustained a head injury as alleged, that as a result of that head injury the employee suffered an aggravation or recurrence of a depressive state which had apparently first manifested itself sometime in 1980 in circumstances referred to in paragraph 26 of the Tribunal's reasons set out later herein and that the employment of the employee by the Commonwealth was a contributing factor to such aggravation or recurrence of that depressive state.
But the Court is of the view that the Tribunal erred in determining that the matter should be considered only as an injury case under s.27 and not as an injury simpliciter under s.27 in respect of the blow to the head and as a disease case under s.29 in respect of the aggravation or recurrence of the employee's depressive state. In my view, the Tribunal should have determined any question of the employee's incapacity for work flowing from his depressive state under the provisions of s.29 and not as an injury under s.27 of the Act, the neurotic condition or depressive illness being, in my view, a mental ailment or disorder or morbid condition falling within the definition of "disease" in the Act. Such a "disease" was excluded from the meaning of "injury" other than through s.29(2)(f) of the Act.
As it is apparent that the Tribunal's determination as set out in paragraph 24 results from the application by it of the views set out in the extracts from the three judgments referred to in paragraph 23 which, in the Court's view, has caused some confusion in the Tribunal's determination in the present matter, a warning is given concerning the reasons of decisions made under the different workers' compensation legislation in Australia.
Care must be taken in applying the reasoning of the High Court and Privy Council in cases where those Courts were considering the Commonwealth compensation legislation under the Commonwealth Employees' Compensation Act 1930 (the 1930 Act); the 1971 Commonwealth legislation, namely Compensation (Commonwealth Government Employees) Act, where the definition of "injury" expressly excluded a disease or an aggravation of a disease, and the New South Wales or the Queensland workers' compensation legislation. Those State Acts have for some years defined the word "injury" to include a disease.
This is especially so in judgments considering whether a morbid condition of the body initiated by an external stimulus would be an injury in the ordinary sense, whereas the development or progress of an autogenous disease would not. It must always be remembered that the Commonwealth 1930 Employees' Compensation Act had separately defined "injury" and "disease", whilst separate and distinct sections of the Act made provisions governing conditions under which each could form a basis for compensation (see 1930 Act, s.9 and s.10). The 1971 Act replaced the 1930 Act. The 1971 Act altered the nature of the liability previously imposed on the Commonwealth by s.10 of the 1930 Act in respect of disease cases. The separate liability to pay compensation for death or incapacity resulting from a disease as imposed by s.10 of the 1930 Act was not continued. Under the 1971 Act if the conditions prescribed by s.29 are satisfied, the contraction of a disease or the aggravation, acceleration or recurrence of a disease "shall be deemed to be personal injury to the employee arising out of the employment of the employee by the Commonwealth". (See s.29(2)(f)).
Assistance in fully understanding the history of the Commonwealth legislation and the varying sections of the Commonwealth Acts referred to in the authorities may be acquired from the reasons for judgment of Northrop J in Commonwealth v Whillock (1983) 48 ALR 433, particularly at 448 et seq.
Relevant decisions under compensation legislation in England and Australia, particularly in New South Wales and Queensland are conveniently set out in the reasons of Gibbs CJ in Hockey v Yelland (1985) 157 CLR 124 (Hockey's case) at pp 133-137.
At p 133 His Honour said:
In many cases decided under workers' compensation legislation in both England and Australia, a wide meaning was given to the expression "injury", or "injury by accident" as it more usually appeared in the earlier legislation. The expression was held to include physiological harm, such as the tearing of a muscle or the destruction of a blood vessel, and the contraction of some disease, although under the legislation in the earlier form it was necessary to show that the physiological harm or the contraction of the disease arose out of and in the course of the employment. The cases in which this broad meaning was first given to "injury" were decided under legislation which made no specific provision for diseases, or provided specifically only for a special class of disease: see Darling Island Stevedoring and Lighterage Co. Ltd v Hussey (1959) 102 CLR 482 at p 497, per Fullagar J. In Hume Steel Ltd v Peart (1947) 75 CLR 242 at pp 252-253, Latham CJ, after saying that an injury may be either external or internal, continued:
'It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury'.
As a statement of the effect of the word "injury" where it appears in workers' compensation legislation and is not specifically defined, those remarks are no doubt correct. Where, however, the legislation defines the expression, its meaning must depend on the words of the definition. (Emphasis added). Because the definitions were different, cases like James Patrick & Co Pty Ltd v Sharpe (1955) AC 1 and Kavanagh v The Commonwealth (1960) 103 CLR 547, which were decided under the Workers' Compensation Act 1928 (Vict), as amended, and the Commonwealth Employees' Compensation Act 1930 (Cth), as amended, respectively are of no relevance to this aspect of the case.
There the High Court was considering the relevant sections of the Queensland legislation and the effect of the definition of "injury" in relation to an autogenous disease which manifested itself in the course of the worker's employment.
By s.9(1) of the Queensland Act a worker who has received an injury arising out of or in the course of his employment is, subject to the Act, entitled to compensation. Injury is defined, in s.3(1), as follows:
'Injury' means (without in any wise limiting the operation and scope of section nine of this Act) personal injury arising out of or in the course of employment, and includes -
(a) a disease which is contracted in the course of the employment, whether at or away from the place of employment, to which the employment was a contributing factor; and
(b) the aggravation or acceleration of any disease where the employment was a contributing factor to such aggravation or acceleration,
but does not include those diseases as specified in section 14B of this Act.
At page 136 of those reasons the Chief Justice states:
The effect of the definition (of "injury" in s.6(1) of the New South Wales legislation which is in all material respects the same as that in s.3(1) of the Queensland Act) was again considered in Favelle Mort Ltd v Murray (1976) 133 CLR 580. In that case the whole Court held that a worker who had contracted meningo-encephalitis in the course of his employment had contracted a disease to which his employment was a contributing factor, and so had suffered an "injury" within par. (a) of the definition. However there was a difference of opinion as to the interpretation of the definition. Stephen and Mason JJ followed Slazengers
(Australia) Pty Ltd v Burnett (1951) AC 13 and Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482, and held that the contraction of an infectious disease could only be an "injury" if it came within par. (a) of the definition. Jacobs J ((1976) 133 CLR, at p 600) pointed out that Slazengers (Australia) Pty Ltd v Burnett and Darling Island Stevedoring and Lighterage Co Ltd v Hussey dealt only with a disease of autogenous origin and said that the reasoning in those cases is capable of being applied only to a disease which does not arise from an injury. He concluded that the invasion of the body by a foreign organism, such as a virus, was itself an injury within the introductory words of the definition although also a disease within par. (a)
((1976) 133 CLR at p 602). Barwick CJ also took the view that an external excitement initiating a morbid condition of the body would be an injury in the ordinary sense, although an autogenous disease would not ((1976) 133 CLR at pp 587-589) and thought that the judgments in Slazengers
(Australia) Pty Ltd v Burnett and Darling Island Stevedoring and Lighterage Co Ltd v Hussey were erroneous, since they treated all diseases, whether autogenous or externally caused, as excluded from the introductory words of the definition. However, because of the doubt then existing as to whether decisions of the Judicial Committee should be regarded as binding precedents, he did not give effect to that view. The fifth member of the Court, McTiernan J, appears to have taken a view similar to that expressed by Jacobs J.
I respectively agree with the opinion of Stephen and Mason JJ, that Slazengers (Australia) Pty Ltd v Burnett and Darling Island Stevedoring and Lighterage Co Ltd v Hussey establish that the definition of injury in s.6(1) of the NSW Act, which is indistinguishable for present purposes from that in s.3(1) of the Queensland Act, includes a disease only if it falls within par. (a) or par. (b), and so only if employment was a contributing factor.
Mason J (as he then was) and Brennan J agreed with the reasons of the Chief Justice in that case.
It should be noted that the passage from Hockey's case cited by the Tribunal in paragraph 23 of its reasons which is set out earlier herein, follows immediately as a sentence to the last paragraph of the Chief Justice's reasons set out above.
As stated earlier, the Court is of the view that the Tribunal erred in its decision that the present matter should be considered under s.27 and not s.29 of the Act. The suggested distinction between the manifestation of an autogenous disease on the one hand and the development of an employee's depressive disease, (whether or not that employee had a pre-disposition to such a disease) following an external stimulus which was clearly a work "injury" on the other, in cases brought under the New South Wales or Queensland legislation has, in my view, no relevance in such matters brought under the 1971 Commonwealth Employees' Compensation legislation. The latter type of case, that is the aggravation or recurrence of a disease following an external stimulus should, where Commonwealth employees' compensation legislation is involved, be considered under s.29 of the Act with the provisions of that section applying. This must be so because such a disease is expressly excluded from the definition of "injury" in the Commonwealth legislation.
This being so what, if any, are the consequences of the Tribunal having considered the present matter under s.27 and not s.29 of the Act.
First, the Commonwealth had raised s.29(3) of the Act as a defence. That sub-section is set out earlier herein. Here the employee had filled in a medical questionnaire form prior to his engagement with the Munitions factory wherein he had answered "no" to the question whether he had suffered any nervous condition including anxiety states. In paragraph 26 of their Reasons for Decision, the Tribunal states:
26. Against the possibility that we are wrong on the application of sections 27 and 29 of the Act we have considered whether the respondent (employee) made a wilful and false representation on making his application for employment for the purposes of sub-section 29(3) of the Act. The respondent's solicitor pointed to a number of factors. The respondent gave evidence that before 1980 he did not have any psychiatric treatment nor did he attempt suicide; his wife supported this evidence; and Dr Venkatarama said that the respondent did not use the word depression on 9th May 1980 and Dr Venkatarama did not tell him that he was suffering from depression. It was also argued that the respondent's claim was supported by Dr Robertson who reported on 7th September 1984:
'I do not know whether Mr Pisani ever had medical or psychiatric treatment for his depression prior to May
1981. Nor, as stated, do I have any further information about his alleged drug overdose in about 1975... It is certainly not uncommon to see patients having their first severe attack of depression, in whom there is a history of recurrent mild depressions, sometimes stretching back many years, and who have never previously sought medical attention for these depressions. It is possible that Mr Pisani fits into this category, and that when he applied for this position with the Commonwealth, and answered the question relating to nervous disorder in the negative, he did so believing this to be the truth. It should be added that he has a very low level of sophistication with regard to psychological issues'.
We are of the view, taking all the evidence together, that the answers cannot be regarded as being both wilful and false. Accordingly the claim is not barred by sub-section 29(3).
As to this determination of fact by the Tribunal, the question that this Court must ask in this regard is as set out by a Full Court of this Court in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601:
An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based.
Here, of course, the Tribunal had the benefit of seeing the employee in the witness box when he denied any previous alleged fits of depression. Mrs Pisani also gave evidence before the Tribunal that her husband had not attempted to commit suicide in 1975 and that he had never been in a psychiatric hospital prior to 1981. The suggested suicide apparently arose from a history said to have been taken by Dr Saboisky at the Northside Clinic where the employee was admitted for a short period in July 1981 and which was referred to in a report by that Doctor to Dr Venkatarama dated 7 August 1981. That report had been seen by Dr Glass who was called by the Commonwealth as a witness. That history was said to have shown that the employee had suffered depression and anxiety for at least 15 years. When this was put to Mrs Pisani she answered that that history was quite wrong. Further it was put to her that a Dr Farrell of the Westmead Hospital Centre, whose report to the Munitions filling factory dated 24 September 1981 was before the Tribunal gave a history that sometime in or about 1975 her husband had taken a previous drug overdose. Mrs Pisani answered that that was wrong because her husband had never been admitted to hospital and never sought any psychiatric treatment prior to his accident in March 1981. These were matters that no doubt the Tribunal considered before making the determination as set out in para. 26 of its reasons.
The Commonwealth has challenged this part of the Tribunal's determination on this appeal. In my view the finding of fact by the Tribunal in this regard should not be disturbed in accordance with the principle in Collins' case (supra).
Secondly, a perusal of the appeal book herein (which sets out (inter alia) the transcript of evidence before the Tribunal and relevant reports tendered before the Tribunal) clearly demonstrates that had the Tribunal considered the aggravation or recurrence of the employee's "depressive disease" as a disease under s.29 as it should have done, then the Tribunal, in view of its findings of fact set out earlier herein, must have found that the employee had suffered personal injury arising out of his employment by the Commonwealth pursuant to s.29(2)(f) of the Act. That being so, the Court is of the view that it is unnecessary for the matter to be remitted to the Tribunal to be heard and decided again either with or without the hearing of fresh evidence. In this regard, a Full Court of the Federal Court in Delahunty v Commonwealth (1981) 53 FLR 9 at p 14 expressed the view that:
In all the circumstances of this appeal and in view of the fact that no question of credibility arises it is in our view incumbent upon this Court to determine on the evidence given before His Honour whether the appellant was entitled to compensation pursuant to the (Commonwealth Employees Compensation) Act.
That case was an appeal to the Federal Court on a question of law arising under s.95 of the Compensation (Commonwealth Government Employees) Act 1971) from a decision of a Judge of the County Court of Victoria made under that Act. Under s.95, which was repealed in 1981, the Federal Court had power to make such order as in all the circumstances it thought fit. (Cf. s.44(4) of the Administrative Appeals Tribunal Act 1975).
The Court as presently constituted is of the firm view that in the present case, there being no question of the credibility of witnesses, the Court should, in the exercise of its powers under s.44 of the Administrative Appeals Tribunal Act 1975, make the proposed directions set out at the conclusion of these reasons.
This then leaves for consideration the question whether there was evidence supporting the decision of the Tribunal to direct the Delegate as referred to in (iv) of the Tribunal's directions set out at the commencement of these reasons, viz, that the delegate treat the employee as being deemed totally incapacitated for work in accordance with s.26 of the Act and as being entitled to compensation for total incapacity under s.45 of the Act.
In this regard the Court is satisfied that the Tribunal made appropriate findings of fact based on acceptable evidence which could have founded its directions in accordance with the provisions of s.26 of the Act. That section reads:
26. For the purposes of this Part, an employee shall be deemed to be totally incapacitated for work if his incapacity is such that he is fitted only for employment of a kind that is not commonly available and employment of that kind is not reasonably available to him.
The Tribunal in its reasons made reference to the evidence of Mrs Pisani wherein she stated that she had noticed a change in the employee about a couple of weeks after the accident on 31 March 1981 when he was apparently concerned and worried about doing indoor work on munition fillings and that that had started to come on slowly after the accident. Also, that prior to the accident he had always done inside work. The Tribunal made reference in its reasons to the evidence of the various psychiatrists whose reports were before it. Dr Robertson, who treated the employee in Westmead Hospital in August 1981 following an incident where the employee had apparently taken an overdose of his medication, indicated that in about September 1982 he thought the employee should at that stage start looking for work of an outdoor nature because his anxiety in the presence of machinery indoors rendered him unfit for any work of that kind, he then being claustrophobic. The Doctor was of the view that he had a lifelong illness requiring supervision for a very long time to come whether or not he worked. The Tribunal made reference to Dr Robertson's evidence that it would be very difficult to obtain such suitable work for the employee in the western suburbs of Sydney. It is clear that the Doctor was then well aware of employment conditions in the particular area under consideration.
Part of the evidence of Dr Robertson in this regard reads:
Do you remember in about September 1982 certifying Mr Pisani fit for work in relation to the Department of Social Security's requirements?---Yes. I do have some recollection of that. I started to discuss this with him as early as 29 January 1982. We had some discussion about it then, my notes indicated and that he suggested at that stage he was still getting occasional acute anxiety attacks and I suggested to him that he might start to consider looking for work of an outdoor nature but his anxiety in the presence of machinery indoors would render him unfit for any work of that sort. Is this the case, doctor, that notwithstanding that conversation in January, which was a suggestion of yours, that you did not certify him as fit until later in that year?---Yes. Again my notes indicate - I do not know if that is at variance with my report - but my notes indicate on 26 March 1982 he had been switched to unemployment benefits from sickness benefits and that he was having discussions with an officer from the Department of Social Security who I understood was something in the nature of specialist or trouble-shooter if you like, somebody who looked for work for people with particular difficulties. I may well have certified him towards the latter part of the year that he was fit for light duties, but unfortunately I have not made a record of that.
In September 1982 the doctor in fact certified the employee fit for light duties. Thereafter, the employee applied unsuccessfully for three positions as a gardener.
Here again, the Court is of the view that there was evidence to support the Tribunal's finding in this regard and accordingly its determination under s.26 should not be disturbed. In this regard reference is made to the observations of Wilcox J in Australian Telecom Commission v King (1985) 5 FCR 42, particularly at p 48.
Accordingly the appeal by the Commonwealth should be dismissed and the matter should be remitted to the Commissioner for Employees' Compensation with the following directions.
1) That personal injury arising out of or in the course of his
employment was caused to the employee on 31 March 1981, namely a blow to the head;
2) That as a result of the said blow to the head, the employee
suffered an aggravation, acceleration or recurrence of an anxiety depressive illness, a disease within the meaning of the Act;
3) That the employment of the employee by the Commonwealth was a
contributing factor to the aggravation, acceleration or recurrence of the said disease;
4) That in accordance with the provisions of s.26 of the Act the
employee should be deemed totally incapacitated for work;
5) That such total incapacity for work of the employee resulted
from the aggravation, acceleration or recurrence of the disease;
6) The said aggravation, acceleration or recurrence of the
disease be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth in accordance with s.29(2)(f);
7) Calculations of compensation shall be made in accordance with
s.45 of the Act for total incapacity.
8) It is clear that the employee did not suffer any incapacity
from the physical injury immediately following the blow to the head and that his absense from work after 29 May 1981 was the result of incapacity flowing from his depressive condition. The commencement of the period of total incapacity and the duration thereof are to be determined by the Commissioner in accordance with these directions and any further evidence that might be available. It is noted that the employee died on or about 9 April 1986.
9) The question of any dependency governing the appropriate rate
of compensation is also to be determined by the Commissioner.
Although the Commonwealth has succeeded in showing that the Tribunal erred in determining the matter pursuant to s.27 and not s.29 of the Act, the effective result is that the Commonwealth has not succeeded in having the Court determine that the employee was not entitled to compensation. Accordingly, the Court is of the view that the Commonwealth should pay to the respondents their costs of the appeal. Orders accordingly.
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