O'Neill, T.M. v Commonwealth Banking Corporation

[1987] FCA 363

Re: TERRENCE MICHAEL O'NEILL
And: COMMONWEALTH BANKING CORPORATION
No. QLD G199 of 1986
Administrative Law - Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Administrative Law - appeal from Administrative Appeals Tribunal - Commonwealth Employees Compensation - determination as to whether employment contributed to aggravation or acceleration of disease - statutory test to be applied - Tribunal applying different test - error of law.

Workers' Compensation - Commonwealth Employees Compensation Act - determination as to whether employment contributed to aggravation or acceleration of disease - appellant suffering from cardiac neurosis - test to be applied.

Compensation (Commonwealth Government Employees) Act 1971

HEARING

BRISBANE

#DATE 9:7:1987

Counsel for the Appellant: Mr. R. Cooper Q.C. with Mr. V. Green

Solicitor for the Appellant: Messrs Cooper Grace and Ward

Counsel for the Respondent: Mr. D. Bennett Q.C. with Mr. P.R. Arden

Solicitor for the Respondent: Mr. Lawrie of Commonwealth Banking Corporation

JUDGE1

The idea of compensating employees for neuroses and the like said to be work-related may be thought by some people not to be a sound one; not only is it difficult to determine with any confidence why people have become neurotic or depressed, but there is the thought that the very fact of compensation's being available may make it more likely that such conditions will be complained of. Yet in this country there are statutes which entitle employees to compensation for these nervous disabilities, and to these courts must of course faithfully give effect. The appellant says in this appeal under s.44 of the Administrative Appeals Tribunal Act 1975 that he is so entitled and that the Tribunal has applied wrong tests in holding him not to be. I have come to the conclusion, for reasons I shall explain, that the appellant's complaint about the tests applied has been made good.

1. The claim was made under the Compensation (Commonwealth Government Employees) Act 1971 and the appellant succeeded in obtaining a favourable determination on 24 April 1985. On appeal to the Administrative Appeals Tribunal, that determination was set aside. The immediately relevant statutory provision is s.29(1) of the Act:-
   
   

"Where -

(a) an employee contracts a disease or 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 contraction or the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,

the succeeding provisions of this section have effect."

1. Subsequent provisions give a certain effect to a finding that incapacity for work has resulted from an aggravation, acceleration or recurrence of a disease, but it is unnecessary to explain what that effect is. The only point with which the Tribunal was concerned was whether the employment of the appellant by the Commonwealth was a contributing factor to the contraction of the disease of which he complained, or to its aggravation acceleration or recurrence.

2. The Tribunal found that the appellant suffered at the relevant time from a cardiac neurosis unrelated to his work, as an officer of the Commonwealth Bank at Cairns and Atherton in Queensland. Counsel for the appellant contended that that finding was not open on the evidence and that if it was, the Tribunal had arrived at it by an impermissible process of reasoning. The evidence is fairly long and detailed, but it is unnecessary for the purposes of these reasons to discuss the whole of it.

3. Although from time to time suggestions have been made as to the proper meaning of the statutory language set out above, it is doubtful if the process of analysing its meaning helps much, in the ordinary case. To ask the question whether a particular employment was a contributing factor to the contraction of a disease or to its aggravation, acceleration or recurrence is not to use language or a technical character.

4. A similar point was made by Mason J.A. (as he then was) in Migge v. Wormald Bros. Industries Ltd. (1972) 2 NSWLR 29, in a judgment relied on by the Full Court of this Court in Kirkpatrick v. Commonwealth of Australia (1985) 62 ALR 533 at p 537. His Honour said, at p 44, in effect, that questions of causation in the application of workers compensation legislation "are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation". At p.47 he referred to a decision of the New South Wales Court of Appeal as emphasising "that the question of causation is esentially one of fact". In Kirkpatrick's case, after referring to these passages, the Full Court said at p.527:
   
   

"Eschewing metaphysics, the decision of the Tribunal is in this case fundamentally a finding of fact upon a common sense consideration of the factors which led to the applicant's condition . . ."

The appellant's contention is that, although it purported to apply Kirkpatrick's case, the Tribunal here departed from the essentially simple test laid down by the statute.

1. A number of lay witnesses, including the appellant, gave evidence before the Tribunal, as did medical practitioners. Two sorts of conditions were in question: firstly, it was said that the appellant had or may have suffered from a cardiac condition; secondly, it was common ground that he suffered at material times from a psychiatric condition. The determination of the delegate which was successfully attacked before the Tribunal was one under which the appellant succeeded in respect of the second condition. It was determined that he "suffered aggravation of a disease, namely, anxiety depression, and his employment had been a contributing factor to that aggravation . . ." Consequential determinations were made. The view which the Tribunal took, and which is challenged before me, was that the appellant had a cardiac neurosis unrelated to his work. In coming to that opinion, the Tribunal expressed its satisfaction that it should act on the evidence of a Dr. White in respect of the appellant's physical condition, and on the evidence of a Dr. Unwin, in respect of his psychiatric condition; opinions conflicting with the evidence of those two doctors (and there were some) were rejected. Since no suggestion was made that the Tribunal was not entitled to accept the evidence of the two doctors I have mentioned, there is no occasion, as it seems to me, to analyse the views of other doctors. In essence the appellant's case was that the Tribunal did not deal properly - i.e. lawfully - with the critical evidence, that of the psychiatrist Dr. Unwin.

2. Dr. White first saw the appellant in 1980 when he was referred by a general practictioner, who was given a history of a syncopal episode at work in 1971 and some further trouble which, it was suggested, might be related to heart disease, in 1979. Then, in 1980, the appellant suffered more chest pain, associated with dizziness and weakness and continued to have lesser pain of a similar kind. After investigating the matter, Dr. White formed the view that, although there was some old heart trouble, it was not contributing to the appellant's then lack of well-being, which was caused by chronic anxiety depression. Dr. White saw the appellant quite a number of times in 1981 and 1982 with, broadly speaking, similar results. The doctor was plainly of opinion that the psychiatric condition from which the appellant suffered was related to his work, but, as has been explained, the Tribunal did not accept any view on psychiatric matters except that of Dr. Unwin, to which I now turn.

3. Dr. Unwin wrote a report in May 1982 in which he said, in effect, that the appellant should receive further treatment before any decision was made to retire him. He said that:
   
   

"I notice that his premorbid functioning was extremely good and although retirement from the bank may seem on the surface a good idea, it will not alleviate his symptoms which he experiences also in terms of his social life."

1. In fact, as I read the evidence, an alleviation of the symptoms did in fact occur after retirement; that seems not to have been in dispute.

2. Dr. Unwin gave oral evidence, and it was on that evidence that the Tribunal principally relied in interpreting his view. The doctor said, or rather agreed in response to a leading question, that the "aggravating factor that caused all this" was the "heart attack" and described the appellant, again in response to a leading question, as having a "typical cardiac neurosis". In cross-examination, he seemed to agree that the appellant had genuine difficulties in handling his work. He explained this by saying that he was in a "phobic situation" which was going to "come back in all sorts of situations"; he instanced the death of a near relative from a heart attack, a marriage break-up and death of a child. Questioned by the Tribunal, Dr. Unwin said in effect that the case was one in which the appellant had "latched on to" his work as being the cause of his disease, it not being "actually a contributing factor". However, when cross-examined further by Mr. Green of counsel for the appellant, he gave some answers which need to be quoted in full:
   
   

"You have told us that the case of their sick mind getting sicker - one of the factors contributing towards that increasing sickness, if you like, is the work situation - the work pressures? - - - I am sure that is true.

Yes. And so the - would you agree that the work pressure that this man says that he underwent between 1974 and 1979, 1980, was a contributing factor in producing his condition? - - - Yes. I may be seeming to say the two things are the opposite, but I am not.

Yes, you seem - - -?---I am saying yes to both. Maybe you could ask me a different question.

. . .

MR. GREEN: Yes?---May if I could explain myself, and you can ask another question.

Yes?---If a person is having this problem with his fears of his longevity, his life, his heart, etcetera, and, in fact, is centring these around his work, then it is not important whether those pressures are real, or anything. They will in turn create more anxiety and worry, and that, in turn, will make him more fearful.

I see. So he would - if - if worrying - for instance, if worry about his work, such that it is exhibiting the sort of symptoms we went through: shaking and buzzing and so forth, and that is suggestive of the fact that his work is contributing, or adding to, or aggravating his underlying mental health?---You see, it is a basis of it the attitude to work is one of fear, then any relationship to the work is going to aggravate the condition.

All right?---It the attitude is one of enjoyment or one of non-fear, then, in fact, it is probably going to increase his mental health.

Yes. So it is a - this is a case, is it, where he has a - an underlying neurosis which has developed and is aggravated, or ameliorated from time to time on a number of factors?---Yes. You see, Dr Richards - and I am not sure whether this is allowable, you tell me if it is not - Dr Richards called him a vulnerable personality. I disagree with that. I think that he has sensitive areas in a number of situations, and I cannot tell you the intricate details of why that is focussed on work at the moment. It - fear is usually a combination of the particular work pressures in the particular person. And that is difficult."

1. As I understand this rather diffuse discussion, the doctor seemed to be saying that the psychiatric condition was not one which was caused by work, but by a cardiac phobia, but that the symptoms of it were substantially aggravated by the "pressures" of the appellant's work.

2. The principal criticism of the Tribunal's reasons made on behalf of the appellant was that it decided against the appellant on the basis that the underlying disease from which he was suffering was not related to his work, and did not attend sufficiently to the possibility that the appellant had shown that work was a contributing factor to the aggravation or acceleration of the disease.

3. The Tribunal's reasons included the statement that the member was "unable to relate the respondent's incapacity to work after the failed attempt to return to work Cairns (sic) in 1981 to any contribution of his employment by the bank to the contraction, aggravation, acceleration or recurrence of his disease". The Tribunal went on to say that it was "a case of a sick mind latching on to the work factors and not a case of work making a sick mind sicker".

4. The "latching on" metaphor, the precise meaning of which is not very clear, was described by Mr. Bennett Q.C., senior counsel for the respondent bank, as the key to the case. When originally used in Australian Telecommunications Commission v. Tzikas (unreported, 12 August 1985), the expression referred to a quite different problem. Tzikas' case concerned compensation neurosis and the Full Court's remarks drew a distinction between certain consequences "making a sick mind sicker" and "a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity". If one speaks of a person suffering from some physical or mental condition as having "latched on to" a particular cause, the implication seems to be that the cause ascribed by the victim is not the true cause, although he perhaps thinks it is; but in my opinion the resolution of the difficult questions which arise when those whose duty it is to do so have to try to determine the causes of neuroses, depressions and the like is not assisted, buyt is impeded, if one routinely substitutes for the statutory test figurative language used in determining a problem arising in a different factual context. A perusal of the transcript has convinced me that the Tribunal regarded the appellant's passing or failing the "latching on" test as the essential point; a question was put as follows, by the Tribunal, to Dr. Unwin:
   
   

"Well, broadly, doctor, we have got - I have got to distinguish between the situation where work is actually a contributing factor to the aggravation or this or acceleration or his disease, and a situation where a sick person latches onto his work as being the cause of his disease, or an aggravating factor. Which of those . . .?"

1. The Tribunal asked a similar question of Dr. White, beginning with the words, "We have to draw a distinction between something that makes a sick mind sicker and contributing to the incapacity and on the other hand a sick mind latching on to the factors . . ." With respect, a clearer case of substituting another test for that which the statute lays down can scarcely be imagined; that the language selected was not intended by the judges who used it as a universal solvent of this sort of problem is also clear.

2. The Tribunal expressed its assessment of the evidence at one point by saying that:
   
   

"I accept the respondent's evidence of problems with the control balance proof machine at Atherton. I accept that there were staff shortages. Beyond this I cannot accept there was any usual stress at the Atherton bank . . . The respondent's other problems at Atherton were generated by the respondent himself and not by the effect on him of any extra stimulus of the work."

1. It does not appear the Tribunal took the view that the appellant merely affected his condition, or that he deliberately tried to induce it, assuming it were possible to do so. When the Tribunal says that problems were "generated by the respondent himself", that seems to mean, by the condition from which he suffered. It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence or such stress would make it more difficult to show a causal connection between a mental condition and the employment. Nor is it the law that only neurotic conditions arising in circumstances in which an ordinary man of normal personality would become neurotic (if there are such circumstances) are compensable.

2. To return to Kirkpatrick's case (above) the employee there in question suffered from compensation neurosis. He thought his employer had not treated him fairly in relation to injury suffered at work and it was that aspect of the case which made relevant the reference to the observations in Tzikas' case, discussed above. The Court in Kirkpatrick's case described those observations as "concerning a claim for compensation for further aggravation of neurosis by, inter alia, resentment towards the employer . . ." (62 A.L.R. at p.537). Kirkpatrick's case is (as I read it) authority for propositions of importance, in particular that the development of a compensation neurosis as a result of a failure to pay compensation in respect of an allegedly disabling physical condition that is not itself compensable is not a ground for payment of compensation - a view of the tribunal there attacked, but which the Court appeared to approve. Here that principle is not material.

3. There was evidence, including evidence from Dr. Unwin who was accepted, well capable of supporting a finding in favour of the appellant. There was evidence having a contrary tendency. I have been persuaded by Mr. Cooper Q.C. for the appellant that the Tribunal failed to accord to the appellant that to which he was entitled, viz. application of the statute. I think the Tribunal applied remarks in other cases about very different facts, remarks which it thought established additional legal obstacles in the appellant's path. I do not accept that a conclusion on the facts adverse to the appellant was impossible, nor did that contention appear to be very seriously pressed, but the appeal must be allowed and the matter must, regrettably, go back to the Tribunal. I shall ask counsel to address me on the form of the order to be made, and as to costs.