Ross Kennedy and Comcare
[2015] AATA 334
•18 May 2015
[2015] AATA 334
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/5878; 2013/0026
Re
Ross Kennedy
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 18 May 2015 Place Canberra In each application the decision under review is affirmed.
...................[Sgd]....................................................
Deputy President PE Hack SC
CATCHWORDS
COMPENSATION – definition of “injury” – “connected with his or her employment” – terms of representations – whether wilful and false – adjustment disorder with depression and anxiety – failure to disclose previous psychiatric history – representations knowingly false – decisions under review affirmed.
LEGISLATION
Safety, Compensation and Rehabilitation Act 1988 (Cth), ss 5A, 5B, 7(7), 14
CASES
Inco Ships Pty Ltd v Hardman (2007) 167 FCR 294; [2007] FCA 1138
Comcare v Porter (1996) 70 FCR 139
National Australia Bank v Georgoulas (2013) 217 FCR 382; [2013] FCA 1412
REASONS FOR DECISION
Deputy President PE Hack SC
18 May 2015Introduction
Mr Ross Kennedy was, at all material times, employed by the Commonwealth Department of Industry, Innovation, Science, Research and Tertiary Education. In March 2012 he lodged claims with Comcare for compensation pursuant to the Safety, Compensation and Rehabilitation Act 1988 (Cth) for a condition he described as adjustment disorder with depression and anxiety,[1] first experienced in March/April 2011 and experienced again in November 2011.
[1]Section 37 documents, pages 46 and 60.
The claims were refused by Comcare in July 2012 and those decisions were affirmed on reconsideration by reviewable decisions made on 21 November 2012. Mr Kennedy has sought a review by the Tribunal of those decisions.
Comcare refused the claims, and contends its decisions ought be affirmed, on the basis that Mr Kennedy’s condition does not satisfy the definition of “injury” in the Act. It also contends that the claims are defeated by operation of s 7(7) of the Act because, it alleges, Mr Kennedy made wilful and false representations that he did not suffer from, or had not previously suffered from, the disease which Mr Kennedy claims constitutes his injury.
On 3 February 2015 the Tribunal, constituted by Senior Member McCabe, directed that the application of s 7(7) of the Act be determined at a preliminary hearing. For the reasons that follow I have concluded that Comcare’s contention is correct and that the reviewable decisions ought be affirmed.
The legislative setting
By virtue of s 14 of the Act Comcare is liable to pay compensation in accordance with the Act in respect of an “injury” suffered by an employee if the injury results in death, incapacity for work or impairment. The term “injury” is defined by s 5A(1) of the Act to encompass (a) a disease suffered by an employee and (b) an injury (other than a disease) suffered by an employee arising out of, or in the course of, the employee’s employment. There is an exception, however its terms are not relevant to the present application. The term “disease” is defined by s 5B(1) of the Act to mean an ailment suffered by an employee, or the aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth. The term “ailment” is defined in s 4 of the Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Comcare’s case relies on s 7(7) of the Act. It reads:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Some matters concerning the operation of the sub-section warrant emphasis. First, as Mansfield J said of the identically worded provision in the Seafarers Rehabilitation and Compensation Act 1992 (Cth), the particular focus of the sub-section,
… is upon a disease or an aggravation of a disease where there has been a wilful and false representation that the claimant did not, or had not previously suffered, from that disease. It is too general a proposition to say, as the applicant did at one point, that an employer’s liability to compensate a worker under the Seafarers Act is removed if the employee has made a misrepresentation as to the employee’s fitness for work.[2]
[2]Inco Ships Pty Ltd v Hardman (2007) 167 FCR 294, 309; [2007] FCA 1138 at [66].
Next, s 7(7) of the Act requires that the relevant representation be made without any belief that it is true.[3]
[3]Comcare v Porter (1996) 70 FCR 139, 150.
Finally, “that disease” in s 7(7) of the Act refers to the disease, or the aggravation of the disease, which is the subject of the claim for compensation; it is not enough that an employee may have suffered from similar symptoms in the context of a different disease.[4]
[4]National Australia Bank v Georgoulas (2013) 217 FCR 382, 399; [2013] FCA 1412 at [73] - [74].
The course of the hearing
It is necessary to say something of the way in which the hearing took place. As is recorded in the reasons for decision of Senior Member McCabe of 3 February 2015, Comcare made application to have the s 7(7) issue determined as a preliminary issue. Senior Member McCabe acceded to that request despite the opposition of Mr Kennedy. From that point on Mr Kennedy sought to have the hearing adjourned. I refused one application on 25 February 2015 for reasons published on 3 March 2015. Thereafter, Mr Kennedy sent six further applications to the Tribunal raising similar or additional arguments why the hearing ought be adjourned. After hearing from the parties at the commencement of the hearing on 3 March 2015 I refused the further application to adjourn. Thereafter, Mr Kennedy withdrew from the hearing and the matter was heard in his absence.
Given that absence, I made a direction at the conclusion of the hearing that a copy of the transcript of Comcare’s oral submissions be made available to him and that he be at liberty to lodge and serve written submissions in response to Comcare’s arguments by 24 April 2015 (to enable him to deal with his obligations in Federal Court proceedings in which he is involved). On 21 April 2015, Mr Kennedy sent an email to the Canberra District Registrar in these terms:
I seek an extension of time of six weeks to lodge a submission to DP Hack in relation to section 7(7) of the SRC Act as a follow-up to the Interlocutory Hearing held on 3 March 2015.
A response was sent to Mr Kennedy asking him for the reasons for his request (and requesting him to send copies of his communications to Comcare’s representative). No response was received from Mr Kennedy. The matter was then listed for a telephone directions hearing at 10.30 am on 1 May 2015. A notice of that listing was sent to Mr Kennedy on the afternoon of 28 April 2015. Mr Kennedy responded after hours on 30 April 2015, advising:
I am unable to attend the Directions Hearing set down for tomorrow at 10.30 am as advised on 28 April 2015[sic] due to work commitments and lack of adequate notice.
As advised the Tribunal in the past, around 2 days notice is not sufficient time for me to attend a Directions Hearing.
I am available from 5 May 2015, preferably in the morning. I would prefer to attend the Hearing in person.
Following that email, the directions hearing listed for 1 May 2015 was vacated and the matter re-listed at 9.30 am on 5 May 2015. Mr Kennedy was given notice of the new hearing time by email sent at 10.33 am on 1 May 2015. Mr Kennedy was not able to be contacted at the scheduled time for the directions hearing on 5 May 2015. On 7 May 2015, in response to a further request from Mr Kennedy for more time to lodge and serve submissions, I made a further direction, extending until 4 pm on 15 May 2015 the time for Mr Kennedy to lodge and serve written submissions in accordance with the direction of 3 March 2015. Additionally, I directed that any application for any further extension of time be made prior to that deadline and be supported by evidence on affidavit.
The following day Mr Kennedy sent a further email to the Registry seeking a further extension of time. The same day the Registry replied, pointing out the requirement of the 7 May 2015 direction to support the application by evidence on affidavit. Mr Kennedy has not lodged any written submissions nor sought an extension of time within which to lodge them in the manner contemplated by my direction of 7 May 2015. I propose to determine the matter. I am satisfied that Mr Kennedy, who chose to leave the hearing after his application for an adjournment was refused, has had ample opportunity to present his case.
I should also say that Comcare’s arguments on the s 7(7) issue were fully explained in its amended Statement of Facts, Issues and Contentions dated 10 February 2015 and written submissions dated 18 February 2015. Those documents identified the various documents relied on by Comcare to demonstrate Mr Kennedy’s relevant medical history, the representations alleged to have been made and the way in which Comcare’s argument was to be presented. At no stage did Mr Kennedy ever seek to engage with Comcare’s argument, or suggest that the matters of fact identified were incorrect or incomplete or that there were other factual matters that ought be considered. He seemed to prefer to prepare voluminous arguments to demonstrate why he could not engage with Comcare’s argument at the hearing as listed.
The case for Comcare
Comcare’s argument is, as I say, set out in written submissions dated 18 February 2015.[5] Expressed somewhat broadly, its case is that Mr Kennedy suffers, and has suffered for a very considerable time, from an ailment that it describes as depression. It says that on five occasions between October 2005 and May 2012, for purposes connected with his employment or proposed employment with the Commonwealth, Mr Kennedy made representations that he did not suffer from, and had not previously suffered from, depression. Those representations, Comcare says, were false and, it says, the evidence establishes, to the high standard necessary, that they were knowingly false, i.e. that they were wilful and false.
[5]Exhibit 9.
Five issues then need to be considered:
(a)What does the evidence demonstrate about Mr Kennedy’s history of depression?
(b)What representations were made?
(c)Were they for purposes connected with Mr Kennedy’s employment or proposed employment with the Commonwealth?
(d)Were the representations false?
(e)Were the representations wilful?
These matters fall to be decided by reference to documents and inferences drawn from the documents. There was no oral evidence. In particular, Mr Kennedy, having withdrawn from the hearing, gave no evidence that might explain or qualify what appears in the documents and did not suggest in the period prior to the hearing that any of the factual matters relied on by Comcare were in issue.
The medical history
So far as can be discerned from the material Mr Kennedy first consulted a psychiatrist, Dr David Horgan, in 1987. There is little information about that single consultation beyond the fact that Mr Kennedy did not return after an initial consultation.[6] He saw Dr Horgan again in March 1990 on a referral from his general practitioner, Dr AD Hore. In a report to Dr Hore of 16 March 1990 Dr Horgan said this:
He describes a history of chronic depression, describing himself as having been depressed for years. Whilst such complaint is usually indicative of significant personality difficulties, he also describes a wide range of symptoms of overt depressive illness including insomnia, loss of interest, reduced motivation, poor concentration, poor memory, chronic fatigue, marked tearfulness, general pessimism, and vague ideas of suicide although insisting he would never do it. A further indication of his personality damage is his statement that he would regard suicide as a way of registering his objections to the treatment given to him by various people during his lifetime whom he feels have treated him badly, rather than his suicide being related to intense depression as such.
In a report of 30 March 1990,[7] Dr Horgan referred to Mr Kennedy as having had “a chronic depressive illness for quite a considerable period of time …”
[6]Exhibit 23.
[7]Exhibit 20.
One aspect of the history on which Comcare placed emphasis was the relationship between Mr Kennedy’s illness and his clashes with those with whom he worked, generally his supervisors. Conflict with managers is a recurring theme in the material. It is evident the in clinical notes of Dr Hore of 6 June 1991, which refer to Mr Kennedy’s inability to “hold down a regular job”. Seemingly around this time Dr Hore referred Mr Kennedy again to Dr Horgan who again placed him on medication and noted, in his report to Dr Hore, that it was essential that Mr Kennedy continue on medication indefinitely.
Mr Kennedy saw Dr Graeme Wood, a consultant psychiatrist, in the second half of 1997. That doctor’s report of 30 March 1998 refers to Mr Kennedy suffering “with a major depression with significant secondary anxiety”. [8]
[8]Exhibit 24.
Dr Horgan saw Mr Kennedy again in May 2005 when he reported to Dr Hore that “(h)is chronic anxiety and depression continue to be a problem”.[9] Dr Horgan diagnosed chronic anxiety, recurrent depression and social isolation.
[9]Exhibit 25.
Next are a series of clinical notes from Davidson Trahaire Corpsych[10] detailing conflicts in Mr Kennedy’s work in May and June 2009.
[10]Exhibits 26, 27 and 28.
Finally, it is material to refer to the clinical notes of Dr Lynda Bates, who I infer is a general practitioner who was consulted by Mr Kennedy on 3 November 2011. Her note of that consultation refers to Mr Kennedy having been diagnosed with depression 19 years earlier and having been on treatment from the age of 20 years (he is now 52 years old).[11] She made a diagnosis of anxiety with depression.
[11]Exhibit 34.
Mr Kennedy’s long history of depression is confirmed by two reports of Dr William Knox, a consultant psychiatrist engaged by the solicitors then acting for Mr Kennedy in these proceedings. Dr Knox produced two reports, of 1 May 2013 and 28 August 2013, lodged in the Tribunal by those solicitors. In the first of those reports Dr Knox noted
Mr Kennedy says that he has tended to depressed mood as of his late 20’s, and had seen psychiatrists in Melbourne in the past for psychotherapy and antidepressant drug treatment. He has likely suffered from episodes of Major Depression, and to some degree Anxiety Disorders.
Dr Knox referred to Mr Kennedy having taken the antidepressant medication Efexor XR for the last eight years.
Finally, I note that Mr Kennedy’s Statement of Facts, Issues and Contentions, lodged by his former solicitors on 21 October 2013, says this of Mr Kennedy’s mental health:
The applicant has been treated for psychological illness for much of his adult life, including the use of anti-depressant medication. He has, however, been predominantly fit for work throughout.[12]
[12]Exhibit 11, paragraph [18].
What is abundantly clear is that depression has been a continuing condition with Mr Kennedy for many, many years; it was not an isolated, and thus forgettable, instance of treatment many years ago.
The representations made
The first representation relied upon by Comcare appears in a “Health Status Assessment” prepared by Health Services Australia Ltd and completed in October 2005 at a time when it was contemplated that Mr Kennedy would be employed by the Commonwealth. The form of the document anticipates that it would be completed by three persons – the “Referring Agency”, the examinee and a medical adviser – before a medical examination was undertaken. The referring agency was shown to be Invest Australia, an agency within the Department of Industry, Resources & Tourism, and the reason for the referral was described as “new starter”. In that regard I note that paragraph 15 of Mr Kennedy’s Statement of Facts, Issues and Contentions[13] says:
The Applicant relocated to Canberra in October 2005 to work for Invest Australia as part of the Commonwealth Government’s Department of Industry, Tourism and Resources Portfolio.
[13] See Exhibit 11, paragraph [15].
Section 2 of the document was required to be completed by the examinee, Mr Kennedy. After providing some detail of his occupational history Mr Kennedy was required to choose either “yes” or “no” to questions about his medical history. Materially, he was asked:
Do you or have you ever had:
…
24 nervous or mental condition
25 anxiety or stress reaction or depression
Mr Kennedy chose the answer “no” to each of those questions. He signed a declaration that the information given was, to the best of his knowledge, true and complete.
I interpolate to note that Mr Kennedy gave those answers, and provided that the certification, some five months after Dr Horgan saw him and noted that his “chronic anxiety and depression continue to be a problem”.[14]
[14]See Exhibit 25.
The next representation relied upon appears in a very similar document completed by Mr Kennedy and a medical adviser in February 2008.[15] On this occasion the referring agency was said to be the Department of Agriculture, Fisheries and Forestry where Mr Kennedy was employed between 2006 and January 2011.[16] The stated purpose of the referral was “Pre-employment medical for ongoing engagement”. Mr Kennedy was asked the same questions and gave the same answers as were in the October 2005 assessment.
[15]See Exhibit 16.
[16]See Exhibit 11 at [16] - [17].
On 22 March 2012, Mr Kennedy completed, and declared the truth and accuracy of, two claims for compensation for “adjustment disorder with depression and anxiety”. The first claim referred to a date of injury of March/April 2011 for which Mr Kennedy first sought medical treatment on 4 April 2011. Mr Kennedy answered “no” to each of the following questions:
16Have you ever had a similar symptom, injury or illness, work-related or otherwise?
17 Have you ever received medical treatment for a similar injury or illness?
The second claim, for the same condition, is said to have either returned or worsened in November 2011. Mr Kennedy again answered “no” to question 16 and, in response to question 17 concerning medical treatment for a similar injury or illness, gave details of his attendance upon Dr Bradfield on 4 April 2011.
Comcare says that the answers by Mr Kennedy to question 16 in each application were representations caught by s 7(7) of the Act.
The final representation relied upon by Comcare occurred on 14 May 2012 when Mr Kennedy was referred by Comcare to Dr Zoltan Zsadanyi, a consultant psychiatrist, for assessment and report. The report of 14 May 2012 notes under the heading “Past Medical & Psychiatric History”:[17]
Mr Kennedy did not report any previous psychiatric history and said he had a history of asthma. His GP has regularly requested blood test which Mr Kennedy reported as being normal.
He uses fish oil capsules and multivitamins.
Dr Zsadanyi subsequently confirmed that he had asked Mr Kennedy about his past psychiatric history and that Mr Kennedy had denied any past psychiatric history.[18]
[17]Exhibit 13.
[18]By emails forming part of Exhibit 12.
What was the purpose of the representations?
Sub-section 7(7) operates, relevantly, when the representation is made,
… for purposes connected with his or her employment or proposed employment by the Commonwealth …
Those made in October 2005 and February 2008 plainly satisfy that test. Each was made in the course of a health assessment arranged by an agency or department of the Commonwealth for the purposes of determining Mr Kennedy’s suitability for permanent employment and, on each occasion, the examining practitioner certified Mr Kennedy to be medically capable of performing all duties of the specified job as described by the referring agency.[19] In each case the representations, that he did not have and had never had a nervous or medical condition, or anxiety, stress reaction or depression, were made for purposes in connection with his proposed employment (October 2005) or employment (February 2008) with the Commonwealth.
[19] See Exhibit 17, page 11 and Exhibit 16, page 9.
The position is the same with the representation made in the March 2012 compensation claims. Mr Kennedy’s answer “no” to the question “Have you ever had a similar symptom, injury or illness …” cannot be seen otherwise than as a representation by him that he did not suffer, and had not previously suffered, from the conditions subject of the claim “adjustment disorder with depression and anxiety”. The fact that the representation was in a claim for compensation for a condition said to arise from events at Mr Kennedy’s workplace provides the obvious connection with his employment with the Commonwealth.
That connection exists with the representation made in the course of Dr Zsadanyi’s examination – in May 2012. As Comcare’s letter of 30 March 2012 to Dr Zsadanyi makes plain, the purpose of the examination was to assist Comcare in the consideration of Mr Kennedy’s claim for compensation.[20] That too was a purpose connected with his employment by the Commonwealth.
[20] Exhibit 33.
Were the representations false
Given that the sub-section is concerned with representations of a particular nature – that the claimant did not suffer, and had not suffered, from the disease now claimed to constitute the injury for the purposes of the claim – it is necessary to focus precisely on the terms of the representations made. And it is to be borne in mind that the representation is to be considered in the context in which it was made. Thus, in my view, a representation may be made expressly, it may be implied, it may arise from silence or from a combination of these elements.
One starts from the proposition that Mr Kennedy has suffered from depression (at least) on and off at least since 1990. He answered “no” to a question which asked whether he had, or had ever had, depression in October 2005 and again in February 2008. That cannot have been other than false.
He was asked in the compensation claim forms in March 2012 whether he had ever had a similar illness to that for which he was claiming. He said “no”. Again that was false, he had suffered depression since 1990 at least.
Finally, he was asked by Dr Zsadanyi whether he had any previous psychiatric history and he said no. That, as it seems to me, constitutes a representation that he had not suffered from depression. It was false.
Were the representations wilful?
Mr Gollan, counsel for Comcare, accepts that it is not enough to show more falsity, Comcare must also show that one, at least, of the false representations was made by Mr Kennedy knowing it to have been false. In Comcare v Porter[21] Jenkinson J, after a reference to the judgement of Barwick CJ in Iannella v French[22] said this of the requirement of “wilful” in s 7(7):
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s 7(7). The verbal context supplied by the phrase “false representation” exposes the legislature’s attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word “false”, and the representor’s knowledge of the falsity, commonly signified in civil proceedings by the word “fraudulent”. (Halsbury’s Laws of England (4th ed, 1980), Vol 31, pars 1044, 1059, 1063-1065; R v Aspinall (1876) 2 QBD 48 at 56-57.) The clause “if the employee has … made a … false representation” may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of “wilful” in that verbal context excites the expectation that what the whole clause in the section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s 7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease – a subject notoriously liable to human misapprehension – the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation.
[21] (1996) 70 FCR139, 149-150.
[22] (1968) 119 CLR 89, 94-95.
There is ample evidence, not qualified or contradicted by Mr Kennedy, that these representations were wilful. That evidence comes from Mr Kennedy’s statements to Dr Zsadanyi in November 2014 and by necessary inference otherwise.
As I have observed, Mr Kennedy saw Dr Zsadanyi in May 2012 and told him he had no previous psychiatric history. Thereafter I infer Comcare discovered that not to be the case. Mr Kennedy saw Dr Zsadanyi again on 28 October 2014. Dr Zsadanyi’s report of 7 November 2014 refers to what he was told by Mr Kennedy that concern the present matter in these terms: [23]
[23] Exhibit 12.
I have mostly outlined Mr Kennedy’s updated history in the form of a verbatim narrative of the history he provided me. I highlight that he gave me additional documentation including the letter from a barrister Mr Matthew Gollan at the AAT with respect to Section 7(7) of the SRCA 1988. It is alleged that Mr Kennedy made wilful and false representations to the Commonwealth, that he did not suffer from, or had not previously suffered from such a disease. At least on four occasions, it was alleged that Mr Kennedy had not represented his information fully. At this point Mr Kennedy gave me a one page letter addressed to myself dated 28 October 2014 in which he said that his allegedly false answers to me could be reasonably explained and justified by the following:
I.Illnesses I was suffering at the time.
II.Stigma in society of mental illness.
III.Issues of privacy and disclosure like a homosexual has “coming out”.
IV.Discrimination in employment against sufferers of mental illness.
V.Lack of understanding of supervisors and managers of the impact of mental illness in the workplace.
VI.Lack of trust in you felt by me.
Mr Kennedy reiterated some of his workplace history. He said in 2005 he moved from Melbourne and came to Canberra and applied for a position with the Department of Industry, Resources and Tourism. In the first week he said he had to do a health assessment. Mr Kennedy did not disclose that he had a past history of mental ill health at that assessment. He was in fact working for Invest Australia which he described to me at my first assessment with him as an agency of the current department namely DIISRTE. His three-month probation was not signed off as Mr Kennedy said at the time that he experienced some interpersonal conflict with a manager. In 2008 he said he had another medical assessment which was organised by Department of Agriculture, Fisheries and Forestry.
On 22 March 2012 when Mr Kennedy made a Comcare application he did not disclose a previous history of an adjustment disorder. Mr Kennedy told me that his responses were false but not wilful and the reasons for the latter were according to points I to VI above.
I assume that Comcare provided this report to Mr Kennedy some time in November 2014. Even if it did not, an extract of much of what is set out above is recited in Comcare’s submissions of 18 February 2015. On that day Comcare sent an email to Mr Kennedy in these terms:[24]
At the hearing on 3 March 2015 Comcare intends to rely on Dr Zsadanyi’s written evidence which has already been provided to you. Comcare does not see any need to call Dr Zsadanyi to give oral evidence at the hearing. If you disagree, and require Dr Zsadanyi to be available for cross-examination by you at the hearing, please let us know as soon as possible.
Mr Kennedy responded on 22 February 2015 saying,
I will consider cross-examining Dr Zsadanyi once the Directions Hearing regarding my application for an adjournment has been held and decided.
That application was heard, and refused, on 25 February 2015. I was told that Mr Kennedy did not thereafter give Comcare notice that he required Dr Zsadanyi for cross-examination.
[24] Exhibit 35.
There is no evidence to contradict the account given by Dr Zsadanyi, or any suggestion in Mr Kennedy’s numerous communications with the Tribunal prior to the hearing, that Dr Zsadanyi’s account of events and conversations was in issue so far as Mr Kennedy was concerned. I propose to act upon it and treat it as an accurate account of the conversation and of the content of the letter given to Dr Zsadanyi by Mr Kennedy. It is, though, unfortunate that Mr Kennedy’s letter to the doctor was not produced.
Whilst that letter seeks to explain and justify Mr Kennedy’s false answers, the fact of that explanation demonstrates that Mr Kennedy made a conscious choice not to tell the truth to Dr Zsadanyi. If Mr Kennedy rationalised why he would not tell Dr Zsadanyi the truth, it is inescapable that he made a representation to Dr Zsadanyi (that he had no psychiatric history), that he knew to be untrue. It was not an innocent misrepresentation, it was a knowingly false representation that he had no psychiatric history. Implicit in that representation is the representation that Mr Kennedy did not suffer, and had not previously suffered from depression. It is difficult to know whether Mr Kennedy was suffering from depression in May 2012 but it is plain that he had earlier, and at least since 1990, suffered from depression.
The same conclusion must be drawn regarding Mr Kennedy’s false representations on the March 2012 compensation claim forms. If Mr Kennedy made the false answers for the reason explained by him to Dr Zsadanyi he made them knowingly.
It remains to consider the representations in the medical assessments of October 2005 and February 2008. On each occasion he answered “no” to the question whether he had, or had ever had, depression. Given that he had seen Dr Horgan again in only May 2005 the answer in October 2005 cannot be other than wilfully false. And it is impossible to accept that Mr Kennedy may have overlooked his long history of depression when he came to answer the same question in February 2008.
Conclusions
I am then satisfied that on each of the occasions identified by Comcare Mr Kennedy, for purposes connected with his employment or proposed employment by the Commonwealth, made a wilful and false representation that he had not previously suffered from depression.
Whilst his claims are expressed to be for adjustment disorder with depression and anxiety, the better view of the medical evidence is that the ailment that afflicted him was depression. Initially, Dr Zsadanyi, uninformed by Mr Kennedy’s extensive psychiatric history, concluded that Mr Kennedy suffered from adjustment disorder with depressed mood. Having been informed of Mr Kennedy’s history, Dr Zsadanyi, in his November 2014 report, concluded that the appropriate diagnosis was major depressive disorder. That diagnosis accords with that of Dr Knox who also spoke of a “long-term pattern of depression”.[25]
[25] Exhibit 14, page 2.
There is no relevant distinction to be drawn for present purposes between depression and depressive disorder. The consequence is that s 7(7) of the Act operates to deem Mr Kennedy’s ailment not to be an injury as that term is defined in the Act with the further consequence that Comcare is not liable to pay Mr Kennedy compensation in respect of his ailment.
It follows that, in each application, the decision under review ought be affirmed.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC ....................[Sgd]....................................................
Associate
Dated 18 May 2015
Date of hearing 3 March 2015 Applicant In person Counsel for the Respondent Mr M Gollan (directly briefed)
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