Richardson and Comcare - [2010] AATA 245

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3759

GENERAL ADMINISTRATIVE DIVISION )

Re Michael Richardson

Applicant

And

Comcare

Respondent

DECISION

Tribunal Senior Member Jill Toohey
Air Vice Marshall (Dr) Tony Austin, Member
Date8 April 2010
PlaceSydney

Decision
The Tribunal affirms the decision under review.

.................[sgd].............................
Senior Member

CATCHWORDS
COMPENSATION - harassment – alleged failure of management to respond - applicant suffered stress and anxiety – period off work – liability for injury denied – whether applicant suffered an ailment – applicant’s condition not outside the boundaries of normal mental functioning - decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988
Canute v Comcare [2006] HCA 47
Comcare v Mooi [1996] FCA 1587

Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286
REASONS FOR DECISION

8 April 2010 Senior Member Jill Toohey
Air Vice Marshall (Dr) Tony Austin, Member

Background

1.      Michael Richardson has worked for the Department of Defence since November 1997. He claims compensation for anxiety and stress as a result of harassment by a fellow employee, which he says his employer failed to respond to appropriately, and which led him to be off work from 11 July to 21 November 2008.
2.      Comcare does not dispute that Mr Richardson suffered anxiety and stress as a result of what occurred in the workplace. However, it says he did not suffer a compensable injury but, rather, a normal reaction to a stressful situation which was not “outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi [1996] FCA 1587.
3.      We have to determine whether Mr Richardson suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Mr Richardson’s evidence
4.      Mr Richardson has represented himself in these proceedings. As well as written submissions, he gave oral evidence.
5.      At the relevant time, Mr Richardson was working as a project manager in the Logistics Management Group of Defence Materiel Organisation (Defence). On three occasions in 2007 and 2008, he made complaints about the conduct of a fellow employee, P. The first two complaints, in 2007, were apparently resolved, although not without “some drama” according to Mr Richardson. The second complaint resulted in an apology from P after which the two men met each afternoon for a week and apparently resolved matters.
6.      In April 2008, Mr Richardson was one of several people who received an email from P making allegations concerning the management of two Defence contracts. Mr Richardson took the allegations seriously because they confirmed his own concerns. In the course of the investigation that followed, he reported his concerns which included the conduct of P himself.
7.      The relationship between the men deteriorated and Mr Richardson says P began harassing him virtually every day for two weeks. Mr Richardson reported the harassment to his superiors but the offensive emails, comments and general harassment continued. It became apparent, from some of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Richardson and Comcare

Details

AGLC: Richardson and Comcare [2010] AATA 245
Case: [2010] AATA 245
Decision Date: 8 April 2010

CaseChat Overview and Summary

Richardson lodged a claim for compensation, alleging that he suffered a psychiatric injury due to harassment by a colleague, and that Comcare was negligent in its response. The claim was dismissed by the Administrative Appeals Tribunal, a decision Richardson now seeks to overturn. The crux of the dispute lies in whether Richardson’s condition falls within the scope of compensable psychiatric injury and whether Comcare’s management actions constituted a failure that contributed to his injury. Richardson argued that his stress and anxiety, leading to a period off work, were a direct result of the alleged harassment and Comcare’s inadequate response.

The primary legal issues the court had to address included whether Richardson had indeed suffered a psychiatric injury, and if so, whether that injury was compensable under the Safety, Rehabilitation and Compensation Act 1988. Additionally, the court had to determine whether Comcare’s failure to adequately address the harassment constituted a breach of duty that led to Richardson's condition. Richardson's condition was also scrutinized to ensure it did not merely represent a deviation from normal mental functioning.

The court reviewed the evidence and concluded that Richardson’s condition did not qualify as a compensable psychiatric injury under the Act. It found that his condition was not outside the boundaries of normal mental functioning, and therefore, not a separate ailment. Furthermore, the court held that Comcare’s response, while perhaps not ideal, did not breach any duty of care that would result in liability for Richardson’s injury. The court’s reasoning was grounded in the necessity to differentiate between normal psychological responses to stress and a compensable psychiatric injury.

The Tribunal, having considered the arguments and evidence, affirmed the original decision. The court found that Richardson’s claims did not meet the statutory criteria for compensation and that Comcare was not liable for the psychiatric injury claimed. The decision was thus upheld, and Richardson's appeal was dismissed.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		Michael Richardson

8 April 2010	Senior Member Jill Toohey Air Vice Marshall (Dr) Tony Austin, Member
Background