Shakespeare and Comcare (Compensation) - [2022] AATA 2260

Shakespeare and Comcare (Compensation) [2022] AATA 2260 (8 July 2022)
Division:GENERAL DIVISION
File Number(s):2018/3396
Re:Alysia Shakespeare
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:8 July 2022
Place:Sydney

The reviewable decision made 31 May 2018, being the decision of the Respondent to affirm its earlier determination denying liability to compensate Ms Shakespeare in respect of the claimed injury, is affirmed.
.........................[SGD]....................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – anxiety – depression – post traumatic stress disorder – claim of psychological injury – whether Respondent liable to compensate the Applicant in respect of the claimed injury – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Browne v Dunn (1893) 6 R. 67, H.L.
Dean v Australian Postal Corporation [2010] FCA 680
REASONS FOR DECISION
Deputy President J W Constance
8 July 2022
Part A: Introduction……………………………………………………………………….……[3]
Part B: Background………………………………..……………………..…………………….[4]
Part C: The relevant provisions of the SRC Act…………………………………………...[5]
Part D: The Issues………………………………………………………………………………[6]
Part E: Evidence and Findings of Fact………………………………………………………[6]
Part F: Reasoning……………………….……………………………………………….……[25]
Part G: Conclusion……………………………………………………………………………[31]
A: INTRODUCTION

Ms Shakespeare has been employed by the Department of Human Services since May 2006. She worked in two different Centrelink offices until September 2017. At that time, she held the position of Service Officer.
On 7 November 2017, Ms Shakespeare lodged a claim for compensation[1] in respect of an injury described as “Post Traumatic Stress Disorder, Anxiety and depression”, which she claimed to have suffered in the following circumstances:
I collapsed, I could not take any more psychological injury from my manager Amanda V Ross, PTSD was so severe that I was unable to work, she attacked me verbally and I witnessed her humiliate another staff member after that I vomited was unable to do any work and I was incapacitated and I collapsed totally. I was unable to drive home, I got into my car and my vision was so blurred and I had a Migraine from the stress that she caused. There were many more incidents but this is the last time that I was at work and she finished me off. I have not functioned since at all.[2]
In a statement attached to her claim form, Ms Shakespeare provided details of the other incidents to which she referred.
[1] Exhibit R1 at 44.
[2] Exhibit R1 at 45.
The claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Shakespeare requested this be reconsidered. On 31 May 2018, Comcare decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In 2018, Ms Shakespeare applied to the Tribunal to review the reviewable decision.
[3] Exhibit R1 at 266.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Findings of fact in these reasons have been made on the balance of probabilities.
In…

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.

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Details

Case: [2022] AATA 2260
Decision Date: 8 July 2022

CaseChat Overview and Summary

This matter concerned an appeal by Ms Shakespeare against a decision by Comcare to deny her compensation for a psychological injury. Ms Shakespeare claimed that a series of incidents at the Bega and Tuggerah Centrelink offices, including threats of violence from customers and alleged bullying by managers, caused her to suffer anxiety, depression, and post-traumatic stress disorder. The Deputy President was required to determine whether Ms Shakespeare had suffered an "ailment" or an "aggravation of an ailment" within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and if so, whether that ailment or aggravation was contributed to, to a significant degree, by her employment.

The court considered the definition of "injury" and "disease" under the Act. An "injury" includes a mental injury arising out of or in the course of employment, but excludes a disease or injury suffered as a result of reasonable administrative action taken in a reasonable manner. A "disease" is defined as an ailment or its aggravation that was contributed to, to a significant degree, by employment. The court noted that "significant degree" means a degree that is substantially more than material.

The Deputy President found that it was unnecessary to consider the provisions of sections 7 and 53 of the Act, as the reviewable decision would be affirmed. This indicates that the primary determination regarding the existence of a compensable injury under the Act was not met. Consequently, Comcare's earlier decision to deny liability to compensate Ms Shakespeare for her claimed injury was upheld.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the reviewable decision will be affirmed. B: BACKGROUND Findings of fact in these reasons have been made on the balance of probabilities. In her statement attached to the compensation claim, Ms Shakespeare related several incidents, or series of incidents, which she says occurred while she was working in the Bega Centrelink office and later the Tuggerah Centrelink office, and which she says caused her to suffer the claimed injury. I will consider the evidence in relation to these incidents in detail later in these reasons. The incidents in the Bega office were:(i)most of the time staff working in the office kept open security doors which could have allowed unauthorised persons to access Ms Shakespeare’s work area causing her to fear for her safety while at work;(ii)on two occasions a customer of Centrelink came to the centre and acted in a manner which caused the police to be called; on both occasions Ms Shakespeare felt unsafe and fearful that her life was being threatened;(iii)a customer accessed the reception area of the centre and removed a flagpole from the wall which he used to threaten staff; reports of the incident to Ms Shakespeare caused her to experience trauma and stress;(iv)on other occasions customers attended the centre and threatened staff with violence, again causing Ms Shakespeare to feel unsafe and that her life was in danger;(v)alleged bullying and harassment by her manager, Mr Stapleton. Ms Shakespeare transferred to the Tuggerah Centrelink Office in 2013. In her statement she described incidents of alleged bullying by her manager, Ms Ross.C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH) Subsection 14(1) of the Act provides:(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “Injury” is defined in subsection 5A(1) to mean:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. “Disease” is defined in section 5B:(1) In this Act:disease means:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(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.

Evidence

Evidence Before The Court

The following issues require determination.(1)Did Ms Shakespeare suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Department, and therefore a “disease” within the meaning of the Act?(3)If so, are either or both provisions of sections 7 and 53 applicable in this matter?E: EVIDENCE AND FINDINGS OF FACTEvidence of Ms Shakespeare It became apparent during the proceedings that Ms Shakespeare was having difficulty giving evidence, other than for very short periods. To overcome this, the parties agreed that Ms Shakespeare’s statements be read to her by her Solicitor and that Counsel for Comcare would put general propositions to her without pursuing the detail which would normally be expected in cross-examination. On this basis Counsel for Ms Shakespeare agreed that no issue would be raised based on the principles in Browne v Dunn.[4][4] (1893) 6 R. 67, H.L.I commend the parties and their representatives for their assistance in this regard. The quotations (any spelling errors are contained in the original) in the following four paragraphs are reproduced from the undated statement provided by Ms Shakespeare which accompanied her claim for compensation lodged with Comcare on 7 November 2017.[5][5] Exhibit R1 at 49. In relation to the lack of security in the Bega office, Ms Shakespeare said, in part:The Bega Centrelink had a cigarette smoking culture and the propping of doors was done by smokers popping in and out to have a cigarette for their convenience and for delivering office supplies. I am writing this down as whilst I understand that the building was considered secure from an organisation point of view, it was not because of the actions of staff there. Even though emails where sent to staff requesting them to stop propping and jamming doors open the building was not secure on a daily basis. I felt unsafe in it, prior/post to the following incidents happening and on multiple occasions I requested management for the building to be kept secure for all staff.[6][6] Exhibit R1 at 52. Ms Shakespeare described the two incidents involving the same man threatening staff:There were two incidents that were very distressing for me where a customer (the same customer), accessed the service centre and police were called in. On both occasions I felt unsafe and fearful that my life was threatened and this fear has never really left me. I have visions of shots being fired through the building and them penetrating the floor near me. I have now experienced years of flash backs because of this trauma, I am triggered when I hear a raised voice or screaming, (even kids screaming in fun loudly affects me as even though I can logically differentiate between violent screaming and fun screaming it still has the same effect on me).I have heart palpitations and a heightened sense of awareness I am hyper vigilant.I'm engaged in a hypervigilant mode of living that it is extreme and exhaustive. I have been traumatised from these incidents ever since because I felt I was a powerless victim due to the environment and circumstances I was working in. I have been a victim of these circumstances due to safety/security failure in the building. I have never been able to get over it and recover from it, even after engaging in medical care and self-care. I was horrified that this could happen and that a customer could come in off the street and breach all personal safety. I was horrified that no policing was available in the first instance and that no restraints where able to be applied to the perpetrator. I was fearful as the customer was not restricted in his ability to physically access the building internally wherever he wanted to. I was traumatised by the possibility of physical assault and even of my death. I thought I was going to die over and over and over again. Today I am still traumatised by the psychological impact of these incidents as I felt that my life was in grave danger; I had visions of dying at the hand of a gunman in a violent rage, someone who I didn't even know and just because I was at work.Firstly, the customer accessed the building and he so was violent and abusive in verbal language and body language and threatening and he did not regard any area on the main ground floor as restricted, (I was told that he was coming to get us by a staff member that burst into the room where I was working) and that he was threatening to access all/other parts of the building as he wanted to do this to get all Centrelink staff. Being aware of the lax building security this threat was very real to me and I realised that he could easily have removed an access card from a staff member or made a staff member give him access. The customer could then have gained entry to anywhere in the building on the ground floor or on the top floor where I was working either by threatening a staff member or simply entering because the doors where propped/jammed open. The customer accessed the front desk and then the back desks, where staff where working at their stations, the customer used violent language to staff and other customers whilst freely jumping around furniture and running around the office in manic energy. The customer was throwing and hurling items and furniture around the building. During his first violent outbursts, the customer expressed that he had access everywhere and was going to get his gun and use it to get what he wanted and to shoot people if they didn't do what he wanted. The gunman graphically threatened people lives. The gunman threatened that if he didn't get what he wanted and staff didn't meet his needs that they would be physically assaulted by him (shot, punched, bashed, killed, stabbed with pens on desk, hit with furniture (chairs etc.), detained, immobilised, stapled, left to bleed, taken hostage, forced to do what he wanted) and that they would end up being shot and forced to do what he wanted anyway. I wanted to leave the building as I wanted to flee for my life as the gunman was advising that he was coming back to shoot everyone and that he had a gun. I did not leave the building however as I was too scared to with the knowledge that it was likely that the doors where propped/jammed open and additionally access could be gained if a threat was made to a staff member and the staff member would be forced to open the door. I wanted to hide, I did not leave the building because he was not immobilised and I did not know where he was from second to second. I did not leave the building or even move from my work station as I was so traumatised that I could not make the decision to leave or not as my terror resulted in me becoming frozen to the spot in fear and indecision. I was panicked and frozen. I was on the top floor and I thought the gunman was not going to be seized and had free run of the building and I thought the gunman was going to shoot people, I thought the gunman was going to carry out his threats. I thought the gunman was going to shoot through the ceiling of the ground floor and that bullets would be spraying up through the floor where I was and that I was going to be shot and that I was going to die or go through the a prolonged process of dying. I thought that bullets where going to ricochet around the room around all of us, and that there was nowhere safe to hide, if I laid on the floor I would be shot from underneath, If I got under my desk I would be dragged out and found out and shot directly, If I leant into a wall I would be shot in the head etc. etc . I thought bullets could be anywhere and that I was vulnerable no matter what I did or tried. Being in a small community it was not unknown to the public that access to the entire building could be made via the fire stair wells, straight in off the street. The manager from the service centre level was asking the gunman to leave and asking innocent customers to leave and the manager from the first level rushed down the stairs and male staff members rushed in and came to assist with this. The customer was asked to leave due to his violent behaviour and violent threats. The managers & other male staff members where ineffective in their efforts to remove the customer from the building. I did not believe that they were strong enough and were in a position to get rid of the gunman.The second incident was when the customer/gunman did come back into the Bega Centrelink office and the police were called to apprehend him as it was understood that he did have a gun and that he was going to use it. The Bega police removed the gunman, I do not know if a gun was removed from his person or not, I believe so but I don't know for sure. I was told that he said it was in his car and that he had gotten it from his car. (In the initial attack the gunman was asked to leave and he did so only after his verbal and physical violence ran its course (not because he was asked to leave or because he was removed and only when he was done being violent and had secured that his violence threats were understood because people were terrified at this point as I was (this appear to provide some form of satisfaction as derived by the gunman.[7][7] Exhibit R1 at 53-54.

Decision

Reasons for decision

As a result of the conclusion I have reached above, it is unnecessary that I consider the provisions of sections 7 and 53 of the Act.G: CONCLUSION The reviewable decision made 31 May 2018, being the decision of the Comcare to affirm its earlier determination denying liability to compensate Ms Shakespeare in respect of the claimed injury, will be affirmed.

Ratio Decidendi

Legal Principle Established

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