Saffioti and Comcare (Compensation)

Saffioti and Comcare (Compensation) [2020] AATA 691 (30 March 2020)
Division:GENERAL DIVISION
File Number: 2017/5586
Re:Victoria Saffioti
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan
Date:30 March 2020
Place:Canberra

The decision under review is affirmed.
........................................................................
Senior Member D O'Donovan
WORKERS COMPENSATION – delusional disorder – whether the disorder is an injury or a disease – characterisation of delusional disorder as a mental injury in the ordinary sense not made out – whether employment contributed to a significant degree – whether workplace stress can unmask a delusional disorder – whether workplace stress did unmask a delusional disorder – workplace events with no foundation in reality - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14
Comcare v Canute (2005) 148 FCR 232
Comcare v Power [2015] FCA 1502
Emi (Australia) Ltd v Bes (1970) 2 NSWLR 238
Hume Steel Ltd v Peart (1947) 75 CLR 242
Jones v Dunkel [1959] 101 CLR 298
McDonald v Director-General of Social Security [1984] FCA 57
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare (2017) 256 FCR 65
Tisdall v Webber (2011) 193 FCR 260
Treloar v Australian Telecommunications Commission [1990] FCA 511
REASONS FOR DECISION
Senior Member D O'Donovan
30 March 2020
INTRODUCTION

The applicant is a long term employee of the Department of Defence. In early 2014 her mental health deteriorated and she began reporting unusual events (including events in her workplace) to her General Practitioner (GP). It is now clear that those events did not occur and the applicant was (and still is) suffering from a delusional illness.
The delusions became worse over time. The psychiatrists who have examined her agree that she is suffering from a delusional disorder. A condition of this kind results in significant misperception of what is occurring and includes forming the belief that events are occurring which have no foundation in reality. Misperception of this kind is a manifestation of the illness. In the applicant’s case her beliefs included the belief that other staff members were secretly collecting information about her and somehow listening to private conversations she was having at home.
The applicant has made a claim for compensation in relation to her delusional disorder. To date, Comcare has not accepted that it is liable to pay compensation.
The applicant accepts that it is not enough to establish that many of the delusions from which she suffers are focussed on the workplace. The applicant’s case rests on a different proposition. She contends that it was her long term exposure to work which she found stressful which unmasked her delusional illness. It is on this basis that the applicant says her delusional disorder is compensable.
The applicant contends that her condition is an ailment contributed to to a significant degree by her employment and therefore meets the statutory definition of an injury in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The applicant also contends that her delusional disorder can be characterised as a mental injury (in the ordinary sense of that word) which meets more easily the threshold for compensation than a disease does. In order to establish that a mental injury is compensable it is sufficient that it arose out of the applicant’s employment. If the applicant’s condition can be characterised as a mental injury – then the causal contribution needs only to be real in the sense that it exists and is above de minimus.
The respondent rejects these propositions. It contends that the applicant’s condition is a disease (in the ordinary sense of that word) and is not an injury other than a disease.
Further, the respondent contends that the burden rests upon the applicant to establish that workplace stress contributed to the applicant’s delusional disorder to a significant degree and she has not discharged that burden. In particular, the respondent argues that the applicant has failed to establish three matters essential to the success of her claim. First, that the applicant was suffering from workplace stress for an extended period. Accordingly, the first factual premise which underpins the applicant’s causal theory is not made out. Second, even if she was exposed to prolonged stress, given the medical evidence, the Tribunal could not be satisfied that stress significantly contributes to the onset of delusional disorders of the entrenched type from which the applicant suffers. Third, even if stress can in some circumstances cause a long term delusional disorder, the Tribunal could not be satisfied that that is what occurred in this case given the large temporal gap between the stress which the applicant claims she was subject to and the onset of her delusional disorder. Consequently, the facts do not support the conclusion that workplace stress was a precipitating cause of her illness.
For the reasons explained below, I am not satisfied that the applicant has established that it was workplace stress which unmasked her delusional disorder. Accordingly, the decision under review is affirmed.
THE EVIDENCE BEFORE THE TRIBUNAL
The evidence before the Tribunal consisted of:
(a)Tribunal Documents (T), Supplementary Tribunal Documents (ST) and Further Supplementary Tribunal Documents (SST) filed by the respondent;
(b)Report of Ms Helen Rutland dated 2 February 2017;[1]
[1] Exhibit A1.
(c)Report of Associate Professor Michael Robertson dated 18 April 2016;[2]
[2] Exhibit A2.
(d)Report of Dr Anne Marie Rees dated 16 February 2015;[3]
[3] Exhibit A3.
(e)Witness Statement of the Applicant dated 11 July 2018;[4]
[4] Exhibit A4.
(f)Performance Development Agreement for the period September 2011 to August 2012;[5]
[5] Exhibit A5.
(g)Email chain correspondence from Mr Waterworth;[6]
[6] Ibid.
(h)Email chain correspondence from Ms Robinson;[7]
[7] Ibid.
(i)Input from Applicant to Mr Waterworth;[8]
[8] Ibid.
(j)Email chain correspondence from Ms Clarke and Ms Priest;[9]
[9] Ibid.
(k)Email correspondence from Mr Thurley dated 12 April 2012;[10]
(l)Email chain correspondence between Applicant and Mr Waterworth dated 5 October 2012;[11]
(m)Email chain correspondence between Ms Priest and Mr Gibbons dated 21 January 2014;[12]
(n)Email from Applicant to Mr Bouwman dated 19 February 2010 (partially redacted) and attachments totalling 9 pages;[13]
(o)Statement of Agreed Facts;[14]
(p)Document titled ‘Saffioti and Comcare 2017/5586 – Brief for Associate Professor Robertson and Dr Champion – Concurrent Evidence’ as completed by Associate Professor Robertson and agreed by Dr Champion;[15]
(q)Report of Dr John Champion dated 12 April 2018 and briefing letter to the doctor dated 4 April 2018;[16]
(r)Witness Statement of Mr Dunlop dated 4 February 2019;[17]
(s)Respondent’s Tender Bundle of summonsed material;[18] and
(t)Email from Ms Scriva to Dr Champion dated 17 October 2019.[19]
[10] Exhibit A6.
[11] Ibid.
[12] Ibid.
[13] Exhibit A6 and Exhibit A7.
[14] Exhibit J1.
[15] Exhibit J2.
[16] Exhibit R1.
[17] Exhibit R2.
[18] Exhibit R3.
[19] Exhibit R4.
In addition, during the course of the hearing the Tribunal heard oral evidence from the applicant and two psychiatrists, Associate Professor Robertson and Dr Champion.
Before setting out my findings of fact and the evidence on which it is based, I do want to record the particular difficulties which arise in analysing the evidence in this matter as a consequence of the applicant’s delusional disorder. I am satisfied that, notwithstanding her best efforts to give a genuine account of past events as she remembers them, both to the Tribunal and to various medical practitioners over the years, the applicant’s condition has the consequence that she remembers things and has reported on events that I am satisfied did not happen. For example, the applicant has given evidence that:
(a)she was deliberately gassed in her workplace;
(b)she overheard work colleagues engaging in conversations about their plans to surreptitiously compile information about her; and
(c)she overheard her colleagues having conversations about things which she had said at home.
I am satisfied that none of these things actually occurred. These memories are the product of her delusional disorder. Consistent with this finding, prior to the hearing of the matter, the parties filed an Agreed Statement of Facts where the applicant and respondent agreed that the applicant genuinely perceived particular events but none of these events in fact occurred.[20]
[20] Exhibit, J1.
There are, however, many things that the applicant gave evidence about which I am satisfied are true. I am satisfied that she was able to accurately recall the facts associated with her workplace experiences prior to November 2013. For example, I am satisfied that she accurately remembers experiencing an increased workload at various times in her employment. In relation to these matters the applicant was able to give cogent evidence and the testimony was corroborated by contemporaneous documents.
I am however doubtful that the applicant has accurate recall in relation to her emotional state at various times in the past and, in particular, prior to the onset of her illness in March 2014. For example, her reporting to Associate Professor Robertson of the symptoms she says she was experiencing prior to her departure for overseas in 2013 and which are recorded in his report, are not consistent with the established facts about her functioning at that time (for further discussion of this see paragraph [81] below). Further, her evidence to the Tribunal about her perception of the mood at work immediately following her return from overseas in late 2013 which conveyed the sense that she was already paranoid and delusional on her return, is not consistent with other information about her behaviour and emotional state in that period.
For these reasons, I approach the applicant’s descriptions of her emotional states at various times prior to the onset of her illness with considerable caution. If the description of the applicant’s emotional state is not corroborated by contemporaneous documents and emerges for the first time after her condition deteriorated in 2014, the fact that the applicant gives that evidence is not sufficient to satisfy me that it was the case.
FACTS
Set out below are my findings of fact. Where those findings could be controversial I have identified the evidence on which the findings are based. In this section I do not address the critical question of whether the applicant was suffering from stress prior to the onset of her psychotic illness. The more refined findings I make on that question are set out at paragraph [65] to [77] below.
The applicant was born in 1962. She commenced employment with the Department of Defence on 14 June 2001. At the time she commenced employment with the Department she was fit and well. She worked initially in naval stores at HMAS Albatross but in 2003 transferred to the position of Administrative Support Officer in the Garrison Support Contract Management Office (CMO) with various periods as a Contract Liaison Officer on higher duties. Initially the applicant found the work enjoyable and she coped well.
On the applicant’s account (which is not seriously contested), in 2004 and 2005 her role began to include increasing amounts of purchasing including purchasing furniture for accommodation on the base. Work duties further increased and intensified from 2008 through to 2012 due to changes in, and the funding of, the purchasing arrangements at the base.[21] There is contemporaneous evidence supporting high workloads and staff shortages in this period.
[21] Exhibit A4, at [21] – [28].
Examples of material which support this finding include:
(a)an email dated 12 April 2012 noting that:
The movement of assets around Shoalhaven is a problem as there is no established mechanism. This creates a significant amount of additional work for [the applicant].[22]
(b)an email dated 5 October 2012 where the applicant indicated there were issues at work and they required more support staff and resources urgently.[23]
[22] Exhibit A6.
[23] Ibid.
In particular the applicant’s mid-cycle review dated 28 February 2012 states that the applicant worked ‘during particularly challenging times brought about through high workloads and staff shortages’. [24]
[24] Exhibit A5, 4.
The respondent accepts that the applicant was subject to a significant workload and worked long hours. What it does not accept is that, as a consequence of these things, the applicant was subjected to prolonged stress which was capable of unmasking a delusional disorder.
The applicant gave evidence that by 2012 she felt overworked, burnt out, stressed and anxious.[25] The applicant concedes that she did not seek medical attention about this at the time or report her mental state in those terms prior to 2014.
[25] Ibid, at [47].
The contemporaneous evidence shows that she did attend her GP on 6 August 2012 and the GP recorded that ‘[the applicant] admits that it has been a bit stressful at work otherwise she has not had any concernes (sic)’.[26] On 13 August 2012 her GP recorded ‘She states that she has been feeling ok, and would be even better if the work load was not that heavy - On questioning she denies experiencing any anxiety or depression’.[27] The applicant in her evidence to the Tribunal explains this muted reporting of stress was on the basis that she was trying to cope by herself and manage the workload and her reaction to it.
[26] Exhibit R3, 72.
[27] Ibid.
In 2013 the applicant decided to go overseas with her sister with her leave commencing in July 2013. Prior to her departure three things occurred. First, the Regional Asset Manager came to Nowra for two weeks to assist the applicant to complete the required end of financial year stocktake. The stocktake was time intensive and she worked late on many occasions to finalise it. In this period she accumulated a lot of flex time. Second, a work colleague asked her out and in June and July they went out a couple of times. Third, she came into conflict with her sister regarding care responsibilities in relation to their mother.
The applicant also gave evidence that around this time she started to experience unexplained ear aches, head-aches and a drumming whirring sensation in her head. The symptoms resolved once she was on leave.
The applicant began an extended absence from work on 29 July 2013.[28]
[28] ST40, folio 187.
In August 2013 the applicant went overseas with her sister. The trip did not turn out to be restful and the applicant, it would seem, did not derive any significant enjoyment from it.[29] At the end of the trip she returned to Australia, and returned to work on 18 November 2013.[30]
[29] Exhibit A4.
[30] T7; ST40, folio 187.
Based on the evidence available from sources other than the applicant, I am satisfied that her behaviour in the workplace was normal when she returned from overseas. The colleague, who had asked her out previously, pursued a low key relationship with her during December 2013 and January 2014. There is no report that he observed any delusional behaviour in that period following her return to work (although he did subsequently). The applicant filled out an Overseas Travel – Debriefing Certificate on 18 December 2018[31] in a normal way, indicating that there was no unusual contact with foreign nationals on her trip. The applicant attended her GP regularly after her return from overseas but did not report anything unusual prior to March 2014.
[31] ST2, folio 3 – 6.
While the evidence is not all one way,[32] the preponderance of the evidence satisfies me that the applicant’s delusional disorder did not develop before February 2014.
[32] In particular the statement of the applicant’s supervisor made on 18 March 2014 suggests there were some unspecified longer term concerns with the applicant’s behaviour.
I do note that this finding is not consistent with what might be inferred from the evidence the applicant gave to the Tribunal. The applicant’s evidence to the Tribunal was that upon her return to work there was a change of atmosphere and people were behaving differently around her - acting on their best behaviour. This suggests that the paranoia may have emerged immediately upon the applicant’s return from overseas. However, given that the applicant appears to have had a normal personal relationship with a work colleague in December and January and filled out a post-travel de-brief in completely normal terms in December 2013 (something she was unable to do two months later), I am satisfied that the delusional disorder only developed in February 2014. I am satisfied that the applicant was not remembering accurately when she gave evidence about her changed perception of her colleagues immediately after returning from overseas.
In February 2014, the applicant became suspicious that the colleague she had been dating was developing a relationship with another work colleague for the purpose of upsetting the applicant. The applicant also formed the view that her relationship with him was not a genuine relationship. She came to believe that he set it up so she would confide in him and provide him with information that could be used against her in the workplace. This colleague provided a witness statement to the Tribunal and specifically denies any such exercise.
The applicant gave evidence that she believed that:
..for a good while…there had been an information gathering exercise about me by a number of people at work. I heard a colleague say to a member of staff who had just been talking with me during a cigarette break “did you manage to get anything?” I heard [him]…say to another staff member “I’ll just say that she asked me out”.
The applicant also began to notice certain things at home including:
(a)The removal of spot welds from security gates that her father had attached securely to the side of the house.
(b)Members of staff at work were repeating personal conversations that she had had with people within her house. Her phones, mobile, alarm systems and computers had been compromised.
(c)She was being watched which she knew because things that had happened to her privately were being reflected in conversations by people at work. She could not imagine how the work staff would know about some of those issues.
(d)When she and her sister were speaking in her parked car on the front lawn, her mother, who is hearing impaired, came out and asked us to shush because she could hear our conversation right through the house and over the television that was turned up loudly. She could not understand how the volume of her conversation with her sister was being transmitted.
(e)There was a car constantly parked across the street with someone in it. If it moved at the end of the day another car and observer would replace it. At night they often drove away with no lights.
(f)At a later date she requested her house alarm records while she was overseas. They showed that in the middle of her overseas holiday her house was accessed by key for approximately five hours on a day in the middle of September 2013.
I am satisfied that none of these things occurred and that they are the product of the applicant’s delusional illness.
On 4 March 2014, the applicant attended her GP and explained that her relationship with her colleague was a set up to get her to make statements about the work environment and her colleagues and that these were recorded on his mobile phone. She attended her GP on 5 and 10 March 2014 and was referred to a psychologist and given time off work.[33]
[33] Exhibit R3, 77 – 78.

On 14 March 2014, the applicant filled out a new Report of Contact of Security Concern in relation to her overseas trip the year before.[34] It was in quite different terms to the one she had filled out four months earlier. She identified in elaborate detail innocuous encounters with people overseas which she now felt raised security concerns.
[34] T10.
I am satisfied that from this point onwards the applicant was in the grip of psychosis, although an accurate diagnosis was not reached until August 2014.[35]
[35] When the applicant saw psychiatrist Dr Anne-Marie Rees.
The applicant was off work for almost a year. She undertook a graduated return to work at the Fleet Air Arm Museum. The applicant suffered further paranoid delusions believing that she had conversations with other staff which implied inside knowledge of events in the applicant’s personal life. The applicant became convinced that she was being covertly drugged at work.
On 20 October 2015, the applicant went to see Dr Hughes a psychiatrist on the recommendation of her solicitor. He reported that the applicant presented with ‘non-bizarre paranoid psychosis focussed on the conviction that there had been “something going on in the workplace leading to her “being set up”. He did not believe that the applicant had been covertly drugged as claimed. His diagnosis was a paranoid psychotic disorder and was inclined to diagnose late onset paranoid schizophrenia.
The applicant ceased work on 16 December 2015.
On 2 February 2016, the applicant went and saw psychiatrist Dr Geoff McDonald.[36] Dr McDonald did not believe that the applicant had been set up in the workplace or that she had been covertly drugged. He was of the opinion that the applicant’s psychotic illness was best characterised as a ‘delusional disorder, persecutory subtype’ – he recommended a referral to the acute care service and the use of a community treatment order for enforced regular anti-psychotic injections.[37]
[36] ST34.
[37] Ibid, folio 149.
On 18 April 2016, Associate Professor Michael Robertson diagnosed ‘what appears to be a late onset schizophrenic illness manifesting as a paranoid psychosis’.[38]
[38] Exhibit A2, 6.
Since the applicant ceased work on 16 December 2015 she has not undertaken any employment. She was retired on invalidity grounds by the Commonwealth Superannuation Corporation on 3 April 2017.
PRELIMINARY ISSUES
Before dealing with the matters which are central to the disposal of the matter it is convenient to deal with three preliminary matters which have influenced the outcome of this matter:
(a)Onus of proof;
(b)Whether the applicant’s delusional disorder constitutes an injury or a disease;
(c)How the question of, ‘whether the applicant’s ailment was contributed to to a significant degree by her employment’, should be evaluated.
Onus of proof
The issue before the Tribunal is one concerning initial liability which has never been accepted by the respondent. As a practical matter, the applicant must satisfy the Tribunal of the circumstances which justify a finding that the applicant meets the threshold for compensation in the SRC Act.[39] As Woodward J explained in McDonald v Director-General of Social Security[40] and applied by Justice Katzmann in Comcare v Power,[41] if, after considering all the available material, I am unable to decide either way on the balance of probabilities that the requirements of section 14 of the SRC Act are met, the claim must fail.
[39] Comcare v Power [2015] FCA 1502 at [70].
[40] [1984] FCA 57 at [358].
[41] [2015] FCA 1502 at [62] – [68].
I must be satisfied in relation to each fact on which the claim depends on the balance of probabilities. If I am only satisfied that a particular matter might be the case and the existence of that fact remains in the sphere of speculation, guesswork or mere assumption it is not open to me to make such a finding.[42] The arbitrary selection of one possibility over others from a number of available possibilities is not permitted.[43]
[42] Jones v Dunkel [1959] 101 CLR 298 at 305.
[43] Tisdall v Webber (2011) 193 FCR 260 at [128].
Is delusional disorder an ‘Injury’ or ‘Disease’
Counsel for the applicant submits that the applicant’s delusional disorder can be characterised as both an ailment and as a mental injury.
I reject that proposition. The evidence does not demonstrate that the applicant suffered a mental injury. While it is not always easy to distinguish an injury (in the ordinary sense of that word) from a disease, the courts have provided guidance in approaching the task. As a starting point, Latham CJ’s comments in Hume Steel Ltd v Peart are useful: [44]
there is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described.
[44] (1947) 75 CLR 242 at 252.
Justice Gaegler’s comments in Military Rehabilitation and Compensation Commission v May are also of assistance:[45]
An injury, has long been repeatedly explained, as some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden”, is at least “identifiable”.
[45] (2016) 257 CLR 468 at [75].
These words should of course not be treated as substitutes for the statutory test, but they provide an analytical framework for considering whether the facts of this case support the conclusion that the applicant suffered an injury.[46]
[46] See the discussion in Prain v Comcare (2017) 256 FCR 65 at [59] – [70].
In this case, it is easy to characterise what has happened to the applicant as ‘becoming sick’. It could not be suggested that she ‘got hurt’ to use the words of Chief Justice Latham. There is no identifiable event or disturbance which could be said to meet the description of an injury. Instead, there appears to be a descent over the space of a month or so, into a delusional state. As is discussed in more detail below, when the applicant returned from overseas in late 2013 she was not suffering from a delusional disorder. I am satisfied that the applicant did not display symptoms over Christmas or into the New Year. The first significant sign of symptoms was in February 2014, when she began to become suspicious of her work colleagues and their motives. Her condition was worse by 4 March 2014 when she attended her GP, and by 14 March 2014, when the applicant filled out her new Report of Contact of Security Concern, the illness had taken hold of her.
There is no single event in that period which is suggestive of injury. I am not able to discern any point at which it could be said that the applicant cracked. Over a period that could be as long as six weeks she developed increasingly distorted understandings of what was happening to her and what had gone on in the past. I am satisfied that what occurred was the development of a disease not the suffering of an injury.
Significant contribution test
Having determined that the applicant suffered a disease, the question then becomes: What is the threshold of contribution which the applicant must establish before the respondent is liable?
The applicant submitted that the threshold was low. She contended that if I find that the stress which she claims to have suffered in the 2011-2013 period was real (in the sense that the applicant subjectively felt stressed), then unless I find that it did not contribute at all to the unmasking of her delusional disorder her claim must succeed.[47]
[47] Applicant’s Final Submissions – Aide Memoire at [26].
I do not accept that proposition.
In this matter (given my finding that the applicant does not suffer from an injury in the ordinary sense of the word), for the applicant to succeed she must establish that her delusional disorder was contributed to, to a significant degree, by her employment.[48]
[48] See the SRC Act s 5B.
Even before amendments to the definition of ‘disease’ in 2007, the test was whether the employment ‘contributed to [the ailment] to a material degree’. This was, for a time, interpreted as a contribution which was greater than minimal. However in Comcare v Canute[49] the Full Court was satisfied that the word ‘material’ added ‘an evaluative threshold below which a causal connection may be disregarded’. This suggests that even prior to the amendments in 2007 the SRC Act required a contribution which was greater than a minimal contribution.
[49] (2005) 148 FCR 232 at [68].
Other Federal Court decisions accepted that a material contribution was higher than the just above de minimus test propounded in the earlier Federal Court decision of Treloar v Australian Telecommunications Commission.[50] In 2007 the SRC Act was amended and the current significant contribution test was inserted.
[50] [1990] FCA 511.
Section 5B, as amended, includes the following:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
In Comcare v Power, Justice Katzmann said in relation to these amendments:[51]
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial…Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention.
[51] [2015] FCA 1502 at [93] and [94].
Accordingly, the burden on the applicant is greater than showing that the stress identified by the applicant contributed in some way to the contraction of her delusional disorder. I must be satisfied that the stress contributed to a significant degree which involves a threshold higher than a material degree of contribution. Whether that higher threshold is met will in most cases require an evaluative exercise.
ISSUES
As noted in the introduction, the applicant contends that it was her long term exposure to workplace stress which unmasked her delusional illness which is as a consequence compensable. The respondent resists the applicant’s claim on three bases.
First, it denies that the applicant has established to the required standard that she suffered from workplace stress prior to the onset of the disease. The respondent submits that the applicant’s account of what her mental state was at the relevant times is unreliable because of her illness and that there is no corroborating evidence of her account.
Second, the respondent submits that even if the applicant were subject to workplace stress, the medical evidence does not support the conclusion that stress leads to the unmasking of delusional illnesses of the kind suffered by the applicant.
Third, the respondent submits that even if it is the case that a delusional disorder could be unmasked by stress, the facts of this case are not supportive of such a conclusion.
Findings on stress
The first question to be determined is a factual one. Was there a period during which the applicant suffered from workplace stress? It is not disputed that the applicant worked long hours and that workload increased at various times – those facts are confirmed by contemporaneous documents. What is disputed by the respondent is that the heavy workload converted itself into a subjective experience of stress of a kind that could be implicated in the triggering of a psychotic episode.
The applicant gave evidence that from 2011 she experienced long periods of heavy workplace demands. By mid-2013, as a consequence of having too many responsibilities at work, she was feeling burnt out and tired.
The respondent submits that this evidence should not be accepted because the applicant only began reporting that she experienced significant stress after she was in the grip of psychosis. Prior to that the applicant had disavowed significant stress when asked about it by her GP. Further there was no corroborating evidence called about the stress the applicant suffered or exhibited in the relevant period even though there were witnesses such as her sister who were in a position to observe her health.
The respondent submits that the applicant’s claim that she suffered workplace stress should be treated like her claim that she was gassed or spied on – a product of the illness itself rather than a genuine recollection of her subjective state at the time. The fact that the applicant now says that for many years she suffered from workplace stress but did not understand or report that until after her psychotic illness developed, confirms that this is a re-interpretation of the past through the prism of psychosis rather than a recollection of her psychological state at the time.
The applicant submits that I should accept her evidence that she suffered prolonged stress and was burnt out when she left for overseas in 2013.
Having considered both submissions, I am satisfied that the applicant suffered some workplace stress as a result of her heavy workload in the period from 2011 until her long break in 2013 and there is sufficient corroborating evidence to support the view that she was burnt out prior to her departure for overseas in August 2013.
As discussed at paragraph [13] – [16] above, given the nature of the applicant’s illness I am not prepared to accept as accurate her account of her subjective psychological state at any given time in the past. Both Dr Champion and Associate Professor Robertson accepted that there was a tendency for patients with an illness of the kind which the applicant suffers from, to try and make sense of what has happened to them by creating an explanatory narrative. Associate Professor Robertson described this as ‘effort after meaning’, In those circumstances, I am not prepared to accept the applicant’s evidence as sufficient to establish accurately her emotional state at any given time. I do, however, accept that the evidence was honestly given and based on a genuine belief as to its truth.
The applicant’s evidence of feeling burnt out in mid-2013, is however sufficiently supported by contemporaneous documents to allow me to make that finding. Notwithstanding that I am generally cautious about the applicant’s evidence, on this aspect I am satisfied that her evidence should be accepted.
There are enough documented complaints about the applicant’s high workload to satisfy me that the evidence she gave in relation to that issue is correct and should be accepted. This fact is the foundation for the applicant’s claim that work was causing her stress.
That this workload resulted in stress for the applicant is to some degree confirmed by her GP’s notes. They record that ‘[the applicant] admits that it has been a bit stressful at work otherwise she has not had any concernes (sic)’.[52] On 13 August 2012 her GP recorded ‘She states that she has been feeling ok, and would be even better if the work load was not that heavy - On questioning she denies experiencing any anxiety or depression’.[53]
[52] Exhibit R3, 72.
[53] Ibid.
On their own these notes provide only limited support for the applicant’s claim, but other material is also supportive. In particular the March 2014 statement of her supervisor. He said:[54]
[the applicant’s] wellbeing is suffering noticeably of late. I believe there have been some underlying problems for quite some time.
…
I’m of the belief that we all thought that [the applicant’s] recent LSL would give her an opportunity for a break and she would come back refreshed. Again, I doubt that any rest has had prolonged effect and she is in a similar state to prior to proceeding on leave.
[54] ST7, folio 24.
This, in and of itself is not evidence of stress, but when combined with the applicant’s own evidence of being burnt out, the evidence of high workload and the reports to her GP of some stress associated with that workload, the picture which emerges is of the applicant suffering from stress which was observed by others.
In these circumstances, I am satisfied that the applicant was suffering stress from her workload from at least 2011 until her extended overseas holiday which commenced in July 2013.
Whether stress unmasks delusional illnesses of the kind suffered by the applicant
Accepting then that the applicant suffered stress in her workplace, the question arises whether it played a role in unmasking her delusional disorder. To answer that question it is necessary to consider in some detail the medical evidence.
The two key medical witnesses regarding this question are Associate Professor Robertson for the applicant and Dr Champion for the respondent.
Associate Professor Robertson
Associate Professor Robertson prepared a relatively short report dated 18 April 2016. He saw the applicant in a face-to-face interview. The history he was given by the applicant was of problems beginning in 2010 when the applicant was moved to a garrison support role. The history he records describes an accumulation of problems with ‘increasing interpersonal tension and escalating workload’. The applicant felt that ‘her job drifted into an exclusively purchasing role, which was outside of her area of expertise’. She describes that she had:[55]
“a mental burnout” characterised by her becoming angry, short tempered, frustrated and fatigued. She evolved a pattern of persecutory beliefs emerging from a number of odd physical symptoms that she believed had been caused by her being subject to “enforced medication” - likely administered by gas introduced into her workplace.
The applicant also reported her belief that she was being surveilled and explained that she went on a prolonged sojourn with her sister to the United Kingdom and believed that her employer followed her on her holiday.
[55] Exhibit A2, 3.
Professor Robertson described the applicant as presenting with a paranoid psychotic illness. His diagnosis in his report was ‘late onset schizophrenic illness’[56].
[56] Ibid, 5.
In considering the workplace contribution Professor Robertson reported:[57]
Certainly, psychotic episodes are described as stress-related phenomena, particularly in vulnerable individuals, although such illnesses tend to be short-lived i.e. over a period of two to three days and are often quite florid with marked disturbances of behaviour.
[The applicant] has been unwell for some time and exhibits what appears to be a chronic and encapsulated belief system which to me indicates that this is a schizophrenic illness and that is constitutional. It is possible that in the course of an increased workload she evolved psychiatric symptoms through a mechanism of work pressures unmasking a latent vulnerability to mental illness. It is equally plausible to argue that [the applicant] may have been experiencing a prolonged prodrome to the current illness which accounted for her decline in social and occupational dysfunction
…
[The applicant] developed [her symptoms] in the context of a problematic workplace where she felt overworked and unsupported, although it is possible that these issues were secondary to her deteriorating mental state through a constitutional disorder.
(emphasis added)
[57] Ibid, 5 – 6.
Dr Champion
Dr Champion prepared a report dated 12 April 2018. The report was prepared following a document review and a face-to-face consultation with the applicant. Dr Champion was given a history of a satisfactory workplace until about 2010-2011 when the applicant identified that there had been a regional restructure resulting in ‘increased volume of work pressure’.[58] The applicant explained that she eventually consulted her GP, Dr Luke in March 2014 about the work overload problem.[59] She told Dr Champion about being covertly drugged and set-up at work.[60]
[58] Exhibit R1, 8.
[59] Ibid.
[60] Ibid, 9.

Dr Champion concluded from the history that what was described was ‘initially Acute Delusional Disorder (DSM5) which had then progressed to a Chronic state’.[61] He noted that the applicant improved following exposure to antipsychotic medication and retirement, but the chronic disorder remains far from fully resolved.
[61] Ibid, 19.
He notes that the applicant ‘has no true insight into the causes or effects of her illness. She continues to perceive the effects of her illness as it’s (sic) cause.’[62]
[62] Ibid.
In his assessment the applicant’s condition arose in early 2014 prompting the applicant to consult her GP. Dr Champion diagnosed the applicant with ‘Chronic Delusional Disorder DSM-5 (persecutory type)’.[63] He described the applicant’s delusional disorder as:[64]
a condition generally considered to be due to constitutional factors and not a condition that arises as a result of stress. It is usual however for the Delusional Disorder to cause significant stress and produce symptoms of anxiety and depression associated with the delusions.
[63] Ibid, 20.
[64] Ibid.
Dr Champion did not consider that the applicant suffered any psychiatric condition resulting from her employment with the Department of Defence.[65] Dr Champion was of the view that the applicant developed her psychiatric condition as part of its natural progression. The Delusional Disorder was not pre-existing but emerged whilst she was employed with the Department of Defence. He emphasised that ‘[t]he content and focus of the delusions in Delusional Disorder should not be mistaken for it’s (sic) cause, which is constitutional’.[66]
[65] Ibid.
[66] Ibid, 22.
Concurrent Evidence
When this matter came on for hearing Associate Professor Robertson and Dr Champion gave concurrent evidence. Prior to giving their evidence a brief summary of the evidence was given to both doctors, which was in broad terms similar to the findings which I have made at paragraphs [17] to [44] above. The doctors were asked specific questions and agreed between themselves to provide the following answers:[67]
[67] Exhibit J2.
1.    What is the diagnosis of the condition from which [the applicant] suffers?
Both agree psychotic. More recent assessment was more prominent delusional disorder. Both agree on diagnosis of delusional disorder.
2.    What has caused her to suffer from her condition? What is the foundation for that view?
Both agree the disorder is constitutional – complex mix of genetic and environmental factors. Question is the nature of the environmental factors. A component of the presentation is secondary to the psychosis.
3.    Is the workplace stress over an extended period a probable significant contributory cause of the development of the condition? Please provide the medical basis for your view?
Both agree that she was stressed – Dr Champion sees that this is more reactive to the nature of the psychosis. Dr Champion sees these as being that these factors may be possible not probable. Dr Robertson agrees. Again, the question is disentangling the effects of psychosis on recall.
4.    If workplace stress is not a cause of the condition from which the applicant suffers, is there any other aspect of her work which contributed to a significant degree?
Neither expert could answer this confidently.
5.    Are there any significant factual matters which need to be resolved to determine whether [the applicant’s] employment contributed to a significant degree to the condition from which she suffers?
Nothing
Oral evidence
Following the submission of the agreed document the doctors were cross examined and the significant degree of consensus between them reflected in the agreed document broke down.
By the end of the questioning by Counsel for the applicant, Associate Professor Robertson considered that it was probable that the applicant’s condition was initiated by the workplace stress she identified arising from her workload. Dr Champion remained of the view, that it was unlikely that stress of the kind described would cause a delusional illness of the kind suffered by the applicant.
Having considered, in detail, the evidence of both doctors, I prefer the evidence of Dr Champion over the evidence of Associate Professor Robertson.
Associate Professor Robertson’s report suffers from a number of defects. First, the history which he was provided with was clearly unreliable. The history as recorded in his report suggests that the applicant had significant psychotic symptoms prior to her departure overseas. For example, at page 3 of his report, the applicant is reported as having given a history of believing she was being gassed prior to leaving for overseas. This is not an accurate history and is an example of the applicant altering her recollection of the past to conform with her beliefs about the origin of her illness. There is no evidence at all of the applicant having such prominent delusional symptoms prior to her departure for overseas. As noted previously, on her return from overseas the applicant was not exhibiting signs of a delusional illness.
It is also clear that Associate Professor Robertson never attempted to unpick what was true and what was not and when particular events occurred by reference to contemporaneous documents. Such an exercise is crucial to determining what parts of the history the applicant is giving are true and what parts are the product of psychotic delusion. Associate Professor Robertson frankly conceded that he had not read the GP’s notes which covered the work stress period. It is unclear on what he based his assessment of the applicant’s stress levels in circumstances where he accepted that the applicant’s own reports may well be unreliable as a consequence of her desire to make sense of what she believed had happened to her.
The difficulties are compounded by the fact that, even accepting a history of prominent psychotic symptoms emerging in a period of increased workload prior to her overseas holiday, Associate Professor Robertson only concluded that ‘..it is possible that in the course of an increased workload that she evolved psychiatric symptoms through a mechanism of work pressures unmasking a latent vulnerability to mental illness’ (emphasis added). As the respondent points out, it is not sufficient for the applicant to rely on one of a number of available hypotheses to support a finding that the applicant’s work significantly contributed to her disease.
In the document prepared by agreement with Dr Champion for the purposes of giving concurrent evidence, Associate Professor Robertson agreed that the applicant was stressed (although he was never clear as to when that was the case) and both doctors agreed that the workplace stress was a possible contributory cause of the development of the condition. When he gave his oral evidence, Associate Professor Robertson initially indicated that it was ‘possible’ that stress played a part in unmasking the applicant’s condition. However, upon being questioned by the applicant’s representative, his evidence firmed up to conclude that it was probable that workplace stress contributed 15-20% to the development of the applicant’s illness. This significant departure from the evidence he gave in his report and the assessment he gave in consultation with Dr Champion was never adequately explained.
Indeed his evidence shifted depending who was questioning him. In cross examination by Counsel for the respondent, Associate Professor Robertson indicated that there wasn’t anything he could point to that would put the likelihood beyond possible and into the realm of probability. In re-examination by Counsel for the applicant, Associate Professor Robertson reverted to his original view that it was probable that stress in the workplace played a role in the unmasking of the delusional disorder
In light of these deficiencies, I do not accept the assessment of Associate Professor Robertson. His evidence does not provide an adequate foundation to conclude that workplace stress significantly contributed to the applicant’s delusional disorder.
By contrast, Dr Champion’s report was the product of a long interview and careful review of the documents. He was able to distinguish between periods when the applicant was giving an accurate account of events and when the applicant was in the grip of delusion.
He notes that:[68]
The precise cause of Delusional Disorder is unknown but there is general consensus that Delusional Disorder results from constitutional factors and does not result from even very severe stress, let alone of the type of workplace difficulties of which [the applicant] complains…
[68] Exhibit R1, 12.
He notes that epidemiological studies have not revealed increased incidence of Delusional Disorder following even severe stressors like war.[69]
[69] Ibid.
Dr Champion maintained the view that the applicant’s disease was constitutional in his oral evidence, although he did concede it was possible (but not probable) that workplace stress played a role in the onset of the illness. His conclusion was based on available studies which he described as providing ‘only limited evidence of stressful experience precipitating psychotic episodes’. He accepted that stress was known to be able to trigger short psychotic episodes of 2 or 3 days duration, but was not generally implicated in entrenched delusional disorders like the applicant’s.
I accept Dr Champion’s evidence in this regard and am satisfied that the applicant’s disease is constitutional and is not significantly contributed to by stress.
In reaching that conclusion I accept the applicant’s submission that the lack of a conclusive link between workplace stress and an entrenched delusional disorder does not rule out a finding favourable to the applicant - a decision in favour of the applicant could still be made where there is a respectable scientific view that that stress can unmask the applicant’s psychotic illness, even if that is not the predominant view.[70] However, even proceeding on the basis that stress could be a cause of an entrenched delusional illness, Dr Champion for well-articulated reasons did not accept that it was probable that stress played more than a de minimus role in unmasking the symptoms in the applicant’s case.
[70] See Emi (Australia) Ltd v Bes (1970) 2 NSWLR 238.
Whether stress unmasked the applicant’s delusional disorder
Not only am I satisfied that it is not probable that stress will unmask a delusional disorder as a general proposition, I also accept Dr Champion’s assessment that it is unlikely that workplace stress played a role in the onset of the illness suffered by this applicant.
Importantly, the applicant’s condition emerged, not when the she was undertaking long hours at work, but following an extended period away from the office on annual and other leave and after the Christmas break. In the absence of a temporal connection between work stress and the onset of the applicant’s illness (which I am satisfied emerged in February 2014), I am not satisfied that the workplace stress experienced between 2011 and 2013 was an instigator of the applicant’s condition or played even a small role in unmasking her condition.
DECISION
I am therefore satisfied that workplace stress did not play a role in triggering the applicant’s delusional disorder. The condition from which the applicant suffers is constitutional in origin. I am not satisfied that the applicant’s delusional disorder is an ailment contributed to, to a significant degree by her employment.
The decision under review is affirmed.

108.

109.

110.

111.

112.

113.

114.

115.

116.

117.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate
Dated: 30 March 2020

Date(s) of hearing: 28 October 2019 – 30 October 2019

Solicitor for the Applicant: Mr Trevor Wells, Lough & Wells Lawyers

Counsel for the Applicant Mr Alan Anforth

Solicitor for the Respondent: Ms Melissa Scriva, Sparke Helmore Lawyers
Counsel for the Respondent              Mr Andrew Berger

[2020] AATA 691

30 March 2020

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Expert Evidence

Judicial Review

Statutory Construction

Date(s) of hearing:	28 October 2019 – 30 October 2019
Solicitor for the Applicant:	Mr Trevor Wells, Lough & Wells Lawyers
Counsel for the Applicant	Mr Alan Anforth
Solicitor for the Respondent:	Ms Melissa Scriva, Sparke Helmore Lawyers