Sheehan and Comcare (Compensation) - [2017] AATA 2777

Sheehan and Comcare (Compensation) [2017] AATA 2777 (22 December 2017)
Division: GENERAL DIVISION
File Number(s): 2016/0238
Re:Fiona Sheehan
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries

Date:22 December 2017
Place:Canberra

The Tribunal sets aside the reviewable decision of 11 December 2015 and instead finds that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for Ms Sheehan’s Post-Traumatic Stress Disorder suffered on or soon after 18 March 2014.
........................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Post-traumatic Stress Disorder (PTSD) – disease contributed to, to a significant degree, by Ms Sheehan’s employment – multiple factors contributing to Ms Sheehan’s disease – two competing and closely-contemporaneous factors – whether one factor ‘crowds out’ other factors – accusations of terrorism – traffic incident while travelling between two places of employment in vehicle in Zimbabwe – delayed onset, or delayed expression of symptoms of disease – determining the date of the injury – excluding evidence after the notional date of injury – medical evidence – whether medical evidence should be rejected because of witness’s lack of credibility – decision under review set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Canute [2005] FCAFC 262
Comcare v Mooi (1996) 69 FCR 439 at 444
Costantine and Comcare [2015] AATA 645
Federal Broom Co Pty Ltd v Semlich 110 CLR 626 at 641
Smith v Comcare [2013] FCAFC 65
REASONS FOR DECISION
Deputy President Gary Humphries
22 December 2017

Ms Fiona Sheehan was an employee of the Department of Immigration and Border Protection (the Department) in 2014 when she was caught up in a series of unfortunate events. Most of those events were linked to her partner, Mr Mark Anstee, who was a fellow employee of the Department. The first event occurred while she was tasked by the Department to Zimbabwe and Mr Anstee was working at the Australian consulate in Dubai, United Arab Emirates. On 9 March 2014 Mr Anstee told her that he had been accused by colleagues of planning to bomb the consulate, and had been sent home from work. A couple of days later he fled Dubai for Germany.
On 18 March 2014, Ms Sheehan was driving through Harare, Zimbabwe when she was flagged down by police who entered her vehicle and took her to a police station where she was held until she paid a fine for a supposed traffic offence. Several days later she learned that the apartment she shared with her partner in Dubai had been entered by a staff member at the Australian Consulate and an envelope containing keys had been removed. This occurred because it was thought the envelope might contain a dangerous substance; Ms Sheehan became aware that local police were also involved.
As the allegation against her partner remained unresolved, she sought to return to Australia early, but became concerned and fearful when it appeared that she would need to transit via Dubai to do so. She was afraid, in light of developments there involving her partner, that she might be arrested by the authorities. An alternative route home was agreed to by the Department.
She returned to Australia and on 27 March 2014 attended a meeting at the Department’s offices in Canberra. Three superior officers of the Department were present. Ms Sheehan made a public interest disclosure regarding the events in Dubai involving her partner, and discussed the conduct of colleagues there. She left the meeting distressed at the approach taken by the superior officers to her concerns.
Some time later it became clear that the terrorism allegation directed at her partner was also directed at her.
What followed over the ensuing two years was what counsel for Ms Sheehan described as a crusade by her and Mr Anstee to clear their names. The crusade was successful; an apology was issued to both of them by the Department in August 2016.
She lodged an application for workers compensation on 19 July 2015, claiming that she was injured on 9 March 2014, the date she first heard of the accusation against her partner. Comcare denied liability on 1 October 2015 under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of an adjustment reaction with mixed emotional features. Ms Sheehan requested reconsideration of this decision but on 11 December 2015 the original decision was affirmed. On 12 January 2016 she sought administrative review of this decision by the Tribunal.
BACKGROUND
It is necessary to outline in some detail the events of March and April 2014, in particular, as they affected Ms Sheehan. Although the factual details of the events themselves were not significantly in dispute before the Tribunal, their impact on her mental state most certainly was.
Ms Sheehan started working at the predecessor to the Department in 2005. She had trained as a lawyer and a teacher in Tasmania before this. Between March 2011 and September 2013, she was employed by the Department as a locally engaged employee working in the Australian Consulate in Dubai. From September 2013 she began to work for the Department in Australia, as an Assistant Director (EL 1), Offshore Biometrics Support Section.
In early March 2014 she went on a short term assignment to Harare where she was involved in the roll out of a new visa application centre. At this time Mr Anstee was employed by Austrade as a locally-engaged employee in the Australian Consulate in Dubai. He lived in the apartment leased and registered in Ms Sheehan’s name which they had shared when she also worked there. Registration of a lease involved the provision of details including identity card details and biometrics to UAE authorities. As a result of lease registration those authorities knew these details.
Ms Sheehan was very busy in Harare. Because of communication difficulties she was authorised to work between three locations: the visa application centre, the high commission and her accommodation. She had use of a diplomatic vehicle to travel between these sites.
On 6 March 2014, a colleague of Mr Anstee at the consulate in Dubai, Ms Tina Qahwaji, made an allegation in writing that Mr Anstee had discussed with her making bombs and blowing up the consulate. The allegation claimed that Ms Sheehan was aware of the threat and had discussed with Mr Anstee ways that it could be done. This allegation was given to Ms Ellen Dorfling (the Chief Migration Officer at the consulate) and Mr David Moore (Senior Administrative Officer).
On 9 March 2014, Mr Anstee was called into a meeting and told that there had been an allegation made that he had said he would bomb the consulate. He was not told of any further details of the allegation. He was sent home from work. An hour later he informed Ms Sheehan in Harare what had occurred during a Skype call.
Ms Sheehan was stressed and anxious about her partner’s safety in Dubai but managed to continue to work. Mr Anstee fled Dubai three days later. In a statement dated 28 October 2014 she explained that following his arrival in Berlin she was relieved that he was in a place of safety. She told the Tribunal of a huge sigh of relief when she knew he had arrived in Berlin. Ms Sheehan said of the period until 18 March 2014:
At this stage, whilst I was concerned about my partner, I was able to continue to work and I do not consider that I was experiencing acute distress, having found out that he was safe.
Ms Sheehan arranged for Ms Clodette Charvet, a friend and colleague at the consulate in Dubai, to collect the keys to her Dubai apartment and pay an outstanding bill. Before his departure Mr Anstee had left the keys in an envelope addressed to Ms Charvet at the reception in Ms Sheehan’s apartment building with Ms Sheehan’s name on the back. She continued to work in Harare.
On 13 March 2014 Mr Moore and another person entered her apartment in Dubai without her knowledge or permission. There was an incident where the envelope containing the keys was suspected by Mr Moore to contain suspicious powder. Mr Moore informed the building security personnel who in turn informed the Dubai Police. Ms Sheehan’s evidence to the Tribunal was that the envelope had been seized and taken to a police facility in Dubai and two security guards from the apartment complex had been taken there for questioning. Eventually the envelope was returned. Ms Sheehan was not informed until 21-22 March 2014 when Ms Charvet discovered the fact and Ms Sheehan sought further information from the building security manager. Ms Charvet was questioned by staff at the consulate about the envelope containing the keys.
On 18 March 2014 Ms Sheehan was travelling between the visa application centre and the high commission in Harare in her diplomatic vehicle. In the course of that journey she was stopped by what appear to have been local police and taken to a police station where she was held for a period of between one and two hours in a cell and then required to pay a fine for a supposed traffic infringement. She gave detailed evidence about this incident, which was later summarised by her counsel as follows:
She was in Zimbabwe on work. She was driving a diplomatic vehicle and was intending to proceed from the visa application centre to the High Commission on the eighteenth of March.
She said that on the way she came to a road and the detour signs, and ended up in an area she was unfamiliar with and pulled over and actuated GPS. She said as she was slowing down somebody who was wearing some camouflage clothing stood out in the road way and waved her to pull over. She was not sure whether this person was police or army, and given the state of the clothing, she was not sure necessarily that they were police or army, but she assumed it was a policeman or an army person who had pulled her over.
That person banged on her passenger window, she said that she foolishly unlocked the door. This person immediately got into the vehicle. This person told her to drive. She said there was some conversation in which she demanded the person get out of the car, that he couldn’t be in the car, that it was a diplomatic vehicle. He refused to get out, and said, drive, you have done a lot of bad things and he demanded that she start driving. She said that shortly afterwards, she did what she gave in evidence, as what she considered a very brave thing. She pulled over and insisted on using her phone to call the High Commission. She said she made a call to the High Commission to speak to a Mr Brian Diamond and after asking the person who was in the car where she was being taken eventually was told the police station and she said please tell Mr Diamond I’m going to the police station.
After hanging up, this person again insisted that she drive away. She said that they ended up in a local area and pulled over for another military looking person who opened the back left door and got into the vehicle. Again she said you can’t get in, this is a (indistinct) diplomatic vehicle, again, the pair of them completely ignored her, and kept talking in their language, laughing at her, and that she was getting upset…
At this point, she wasn’t sure where they were going to take her, she said that they eventually directed her to a place, to (indistinct) police station, she said that on this drive she thought she was going to die, to be raped or pillaged. She wasn’t sure whether she should offer money, she wasn’t even sure they were police.
She said they eventually got to the police station and she was told to get out of the vehicle. One walked in front of her and another one immediately behind her. She said they went up the stairs in a building that was somewhat derelict, that the corridors were dark, the (indistinct) floors [were] broken and coming away, she was stumbling, she couldn’t see. She understood that there was no electricity because the power had not been paid or at least there was no electricity that that was her perception, she said there were cell doors on either side of the corridors she was being led down and the first large male was kicking the doors, that it smelled of urine and worse, and there [were] people shouting and making noises from the other side of these closed doors.
She got to a door at the end of the corridor and was told to go into the room. She said she initially refused because she did not want to go in. They insisted and said she had to go in and the door was closed and she sat on a chair. Then one of the men went out and she was there sitting on this chair with the other male not knowing what was going to happen. She said that four other men bigger and bulkier than the first two then came in and stood around her in a circle.
She again said she didn’t know what was going on and what was going to happen. She said it felt like hours that she was there. She said that eventually a female officer came in with a carbon note book, questioned her, and she signed documents that she understands indicated that she was confessing to some sort of local traffic infringement. She was told after she paid some money that she could leave.
She indicates that she was very shaky, had gone to jelly, got up to leave, had trouble coordinating her movement because of the fear she’d been in, and as she was leaving, had a constant fear that somebody was going to call her back or stop her or challenge her and say that there had been a mistake and be returning her to the room.
She eventually came across Mr Diamond who it seems had independently arrived at the station and indicated that she fully went to jelly and was blubbering. She went outside, sat on a step, had some comforting words from Mr Diamond who offered to drive her back and stay with her. She said that the car had to go back so she insisted on driving the car and follow him…
She says the next day she had a debriefing at the High Commission by the ambassador and Mr Diamond where apparently they took very seriously what had happened to her and she was told about outcomes that could have been a lot worse for her and had happened to other expats in similar situations. She said over the next day or so, that other expats she was speaking to had told her how lucky she was and how much worse this incident could have been for her. In summary… she indicated in her evidence that she found this to be a terrifying incident.
Later on 18 March 2014 Ms Sheehan emailed other staff of the Department and her supervisor Mr John Napier about work related matters. At the end of that email she included this report:
Finale Drama
Unfortunately I should have actually stayed at the VAC as after leaving I had an unfortunate incident with the Harare Traffic Police. All okay now but do not trust a GPS in relation to one way streets (or a traffic officer…) in foreign climes and Dip plates will not necessarily assist. I received great support from SAO Brian Diamond and apparently there will be a cable tomorrow.
She had a Facebook conversation with Ms Charvet on the same day, in which these exchanges occurred:
.. Fiona Sheehan: Will do CC, I got hauled into the police station here tonight in Harare which has to be one of the scary experiencing [sic] of my life. Apparently the GPS in my dip plat vehicle took me down a one way street and a cop and his friend who I had to pick up on the way took me to Central station. Luckily I escaped with a fine and a need for a whisky this St Patrick’s day.
Fiona Sheehan: Life just sucks sometimes.
Clodette Charvet: Omg!!! Good that your [sic] safe, I guess you had good convincing pracvitcw [sic] with officer Abdul too hahah! Yeah life sucks but somes/ [sic], keeps it exciting though wink emoticon
Fiona Sheehan: I just started crying once I was in a cell of an [sic] falling down office with 5 officer abduls all dealing with me. I was not sure if I should offer bribes or run away. It was the last straw for my ability to cope and I did disgrace myself by not being brave frown emoticon…..
In relation to her meeting with the High Commissioner the following day she said, in her statement of 28 October 2016:
He asked to see the sheet I had signed and I gave it to him. He said it was a confession they had made me sign and he was going to make an official complaint to the Zimbabwean authorities about my treatment and also the breaches involving police in a Diplomatic vehicle. He told me that I was very lucky and shared some awful stories of what he knew could have taken place. I felt quite sick about it…
Ms Sheehan’s evidence was that, on 22/23 March in Harare she became aware of the role of consulate staff in the entry of her apartment and the involvement of UAE police. In her statement of 28 October 2016 she states:
I was panicking and imagining being arrested at the airport in Dubai and being taken to Bur Dubai police station near where I lived and where the Consulate is located (my employer had arranged for my travel via Dubai). A British man had died in custody there only a couple of months before for swearing. What would they have done to me was what I could not stop thinking about. I am sure my reaction was exacerbated by the experience at the Harare Central Police Station on a few days before but I could not stop playing over in my mind the scenarios. I was now absolutely positive the plot against my partner extended to me because for all these 9 days during which my employer had known about the events nothing had been said to warn me.
She told the Tribunal she was quite frankly horrified on learning of the involvement of consular staff and the police in the entry to her apartment.
Ms Sheehan had a telephone conversation with her director, Mr John Napier, on 20 March 2014. In that call she discussed the accusations against Mr Anstee. In a statement dated 16 October 2017, Mr Napier said that Ms Sheehan sounded distressed during this call. They discussed bringing forward her return date to Australia.
She told the Tribunal she was distressed at the thought of transiting through Dubai: I was crying, I was shaking, I thought I was going to vomit, I was going to commit suicide…
There was an email from Ms Sheehan to Mr Napier on 23 March 2014 in which she detailed her concern about events that had occurred during the previous fortnight and her grave fears about [her] personal safety should she be required to return to Australia via Dubai. The email discussed the envelope incident in Dubai but made no reference to the police incident in Harare. Soon afterwards Mr Napier arranged to have her flight arrangements changed so that she returned via Johannesburg and Perth.
Ms Sheehan returned to Australia between 25 and 26 March 2014.
On 27 March 2014, she met with her supervisors, Jim Williams, John Napier and Nick Torkington, in Canberra. In a handwritten notation, apparently made by her and appended to a copy of the meeting invitation, Ms Sheehan noted:
Fiona’s first day back from Zimbabwe, she met with her FAS, Ag AS and Director. Described her stress, anxiety and desperate need to resolve Dubai matter.
In her statement of 28 October 2016 she gives this account of the meeting:
I was thanked for my work in Harare. I spoke about what had transpired and how I could not believe that Ellen Dorfling could have been involved in my partner’s dismissal, and, even worse, was trying to conceal the involvement of Dubai police and risking my safety. I also told them about other matters involving other staff employed by the Department in Dubai who had ‘disappeared in the night’ including one two weeks earlier involving a long standing employee. I told them about how Ellen had approached me prior to my departure from Dubai in September 2013 and asked me for ‘any dirt’ on this officer as she ‘had her in my sights’. As she had got rid of SR in similar circumstances as my partner’s disappearance from the office I considered this also needed to be looked at as there was a climate of fear and no one wanted to report anything for fear of their jobs. Both my FAS and the Acting Assistant Secretary said that the matter was an Austrade one as they were the employers at post. I said this was ridiculous because the Department Chief Migration Officer was involved from the start. It was clear she was well aware of the trespass on our apartment and the involvement of Dubai police but had not told me of this risk to my life. She would have been content for me to die in custody in Dubai. They had no response to this. There were some downcast eyes and head shaking and then I was told I did not know much and could not be told much as I was ‘not directly involved in the matter’. I denied this vehemently and the meeting closed. I went back to my desk and I thought that I was going mad because I did not understand why my employer did not think anything that had happened was serious and worthy of an investigation?

Ms Sheehan told the Tribunal that Mr Williams’ demeanour at the meeting was: ‘shut me down’ and not tell me anything…
Mr Napier gave evidence to the Tribunal in which he affirmed that he could not recall Ms Sheehan ever telling him that she had been threatened by police in Harare, or that she felt distressed because of an interaction with police in Harare.
On 3 April 2014, Ms Sheehan sought counselling through the employer assistance program (EAP) with Davidson Trahaire Corpsych. She sought assistance from this program at least five more times over the following months.
On 14 April 2015 Ms Sheehan was contacted by Ms Lidija Hary, who had been tasked to investigate an aspect of the issues surrounding the allegations against Mr Anstee. As a result of this and a subsequent conversation on 17 April, Ms Sheehan discovered both that it was Ms Qahwaji who had made the initial allegation against Mr Anstee and that she, Ms Sheehan, was implicated in the allegation as a co-conspirator.
Over the following months, various investigations were initiated in response to allegations raised by Ms Sheehan and Mr Anstee of inappropriate behaviour by staff within the Australian Consulate in Dubai, including matters relating to allegations raised by him about improper conduct by Consular staff and that he had been subject to reprisal action by consular staff. Between them they initiated approximately 13 Freedom of Information requests in order to obtain documents relating to these investigations and made public interest disclosures principally to do with the management of the Dubai situation to the Department. There was an investigation by the Commonwealth Ombudsman. They also appeared in a segment about the affair on the ABC’s 7:30 Report. These steps were features in what counsel for Ms Sheehan described as a crusade by her and Mr Anstee to clear their names against the accusations of terrorism.
On 2 July 2014 Ms Sheehan emailed the Secretary of the Department in the course of this crusade. She said:
114 days ago [i.e. 9 March 2014], the world of my partner Mark Anstee and I was completely rocked then sent into a tail spin when a malicious colleague in the Dubai office made an allegation…
In a chronology headed Comcare Claim but originally prepared by Ms Sheehan for submission to the Commonwealth Ombudsman, an entry dated 3 July 2014 notes …after four months of patience and going mad with stress and worry, we could see that those responsible for managing the matter were not capable of doing so effectively. She told the Tribunal that, at about this time, she was anxious, constantly sick, constantly on edge, constantly jumped at any loud noise. She accepted the accuracy of her treating psychologist’s depiction of her as being hypervigilant. Under re-examination, she said that she first noticed she was hypervigilant on 18 March 2014, the date of the Harare incident.
In an email to the Deputy Secretary of the Department dated 27 July 2014, Ms Sheehan wrote We both continue to be deeply affected by what happened in Dubai nearly five months ago… In a submission to a public interest disclosure investigation for Austrade, undated but apparently written in November 2014, she notes that she and her partner had made ourselves sick with worry trying to find out who could be so malicious as to want to cause so much harm to us. Speaking, it seems, of the six weeks following 9 March 2014, she said:
These weeks took an incredible toll on our wellbeing… The accidental discovery that I may be on a Dubai Police watch list and be arrested at the airport and most certainly imprisoned in that jurisdiction was a horrendous shock.
Ms Sheehan stopped work in July 2015. She has been on sick leave without pay from the Department since then.
She lodged a claim for compensation on 19 July 2015. In the claim she stated that she suffered anxiety and depression, and that she first noticed she was ill at 11:45 am on 9 March 2014 and first sought medical attention on 3 April 2014 from EAP psychologist Megan Webster. Ms Sheehan stated that at the time she was injured she was:
On skype to my partner Mark Anstee who was in Dubai. He told me he had been accused of intending to bomb the Consulate.
She described the event that caused the injury in the following terms:
The initial shock, distress and fear for his safety became panic after some hours without contact from the consulate. I thought he would be arrested in Dubai. Police were talking to him.
She set out that the event that injured her in the following terms:
I think I would have recovered if the matter had been resolved but it has taken 16 months to clear our names as I was also named in the allegation as a co-conspirator. Our lives have been consumed in the effort to get the Department and Austrade to investigate and clear us.
Under cross-examination Ms Sheehan was asked why she had nominated 9 March 2014 as the date of injury. She responded:
I had to nominate a date at the start of the application, and the date was really when the bad things began.
The Department provided an employer statement dated 28 August 2015 to Comcare pursuant to s 71 of the Act. The statement advised that the employer considered that Ms Sheehan’s employment did not significantly contribute to Ms Sheehan’s condition. The employer clarified that the only involvement her employer had had were investigations by the Department’s Workplace Relations and Conduct Section.
Ms Sheehan, in turn, provided an extensive (undated) response to the employer statement. In it she asserted that her injury was caused and exacerbated by the complete failure of the Department to commence an effective investigation into the allegation… Her statement made no reference to the Harare incident; she told the Tribunal that this was because she was responding only to the issues raised in the employer statement.
Ms Sheehan’s claim was declined on 1 October 2015; the delegate indicated that Comcare was unable to be satisfied that her employment contributed, to a significant degree, to the development of her claimed condition. This was on the basis that the significant causative factor was her partner’s employment, not her own. Comcare deemed the date of injury to be 3 April 2014 and asserted that subsequent events were therefore irrelevant.
Ms Sheehan requested reconsideration of the decision on 14 October 2015. She told the Tribunal that a lawyer had checked over her reconsideration request, but that it was substantially her own work. In the request for reconsideration she attributed her condition to four factors that she claimed arose while she was at work. She referred to:
(a)The allegations made against her partner;
(b)The imprisonment in Zimbabwe;
(c)The discovery of the involvement of Dubai police in her apartment in Dubai; and
(d)The meeting at the First Assistant Secretary’s Office in Australia on 27 March 2014.
In the very extensive reconsideration request Ms Sheehan describes how she felt when she discovered Mr Anstee had reached Berlin:
He made it safely to Berlin without being detained and It [sic] was a relief when he went to stay with his parents after seeking medical assistance in Berlin… I knew then that he was safe and being cared for…
During this period I did not miss any work and was fully involved in teleconferences, meetings… I was upset at what had gone on in Dubai given its highly personal connection to me as my former workplace and the likelihood of my acquaintance with the persona making the allegation due to our employment in Dubai, but I was still highly functional and able to carry out my duties.
She outlines the fears she entertained had she been required to return to Australia via Dubai:
… I had visions of it being like at Harare police station but without the safe ending. I saw myself in Bur Dubai Police Station being surrounded by Dubai Police rather than Harare Police. Of course they would be thinking I was a terrorist in their country rather than a traffic infringer. The world was just crashing down at the idea of all the could have beens and what ifs that were constantly coming into my mind.
If I had not had the experience of a cell in Harare Central Police Station, perhaps the effect on me of the news that my the Department colleague (and former friend) was willing for me to experience that treatment or worse in a Dubai cell would not have been so terrible. I now had a real fear, mistrust and even paranoia of any involvement with any police. Clodette’s mention of talking to AFP at the Consulate in Dubai in relation to my apartment clearly made me paranoid and I urged her not to tell anyone anything. This is not my normal behaviour as I used to be a very trusting person but after the police station incident, my meeting with the Ambassador in Harare who told me about what could have gone wrong for me, Embassy staff who also recounted stories of bad incidents involving the Zimbabwe police force and military, this was all too much.
She observes that the continued grievance issues with her employer over the fight to clear her name were exacerbating her situation.
Comcare affirmed the decision dated 1 October 2015 on 11 December 2015, and on 12 January 2016 Ms Sheehan filed an application in the Tribunal for merits review of this reviewable decision.
On 12 August 2016 senior officers of both Austrade and the Department authored a letter which referred to certain communications regarding the allegations against Ms Sheehan and Mr Anstee. The letter then says:
The Commonwealth regrets the tenor of these communications. The Commonwealth accepts that there was no evidence that either of them were ‘a terrorist’. The Commonwealth also accepts that no evidence was found that either of them had any plans to harm the Australian Consulate or anyone within it.
The letter goes on to apologise to Ms Sheehan and Mr Anstee, and to acknowledge that Mr Anstee’s employment should not have been terminated.
Ms Sheehan engaged legal representation in about October 2016. On this basis, according to her statement of facts and contentions filed in the Tribunal, she grasped that what the Tribunal needed to understand in order to make its decision was what she knew at the time she developed her condition and what the employment related events were. Her statement dated 28 October 2016, clarifying these issues, was produced, in which she stated:
This statement outlines the events that led to my compensable condition to the best of my knowledge. Until writing this statement I did not understand that what is relevant to the AAT is only what I knew at the time I developed my condition because I was very unwell and acting for myself. This is why I have not previously been able to articulate precisely the events that led to my condition. My previous statements included a lot of information that I found out after the date. This statement includes a brief chronology of the development of my condition which outlines my knowledge and experiences at the relevant time.
In short, the employment related events that led to the development of my compensable condition as it stood when I first saw the EAP counsellor are:
a.    A failure by my former and current employer to advise me of the danger that I was in should I travel via Dubai following the apartment incident and the subsequent failure to independently advise me of the need to change my travel plans to preserve my safety.
b.    A failure by the Commonwealth to tell me what was happening whilst I was working in a foreign country (which made me feel unsafe).
c.     Being imprisoned by the police in a foreign country whilst on deployment.
d.    The withholding of information by the Commonwealth (including my employer) and other members of my Agency (including a graduate) having more information about my circumstances than I did.
e.    The failure of the Department to take my disclosures about Ms Dorfling seriously at the meeting of Thursday 27 March 2014.
She told the Tribunal that she now suffers an aversion to people in uniform, such as police or military. She found them threatening and scary. She referred to a police traffic stop recently while driving from Victoria to Canberra in which she didn’t cope at all. She was visibly upset in recounting this incident in the witness box.
THE MEDICAL EVIDENCE
Medical reports and records in relation to Ms Sheehan were tendered. In addition, four doctors who had examined her gave evidence to the Tribunal: Drs Reutens, Samuell, Knox and Cohen.
Ms Sheehan sought counselling on 3 April 2014 in respect of personal stress in respect of events involving her husband in Dubai. The clinical notes of Davidson Trahaire Corpsych (which provided that counselling over several weeks), indicate that she had stated that the department and other agencies are still not supportive – acknowledge incident/events that occurred in middle east leaving her feeling doom and hopelessness.
According to those clinical notes on 18 July 2014 she reported no response from secretary ‘corruption, collusion’ and that she cannot understand how so many people at such high levels (Ambassador, Minister, Secretary etc) are not doing anything. On 21 August 2014 she referred to an incident report on Comcare website re ‘dangerous event that happened in Dubai’ in March 2014, that she continued to experience anxiety, depression and stress and was worse now than has ever been before. She described that she feared for her physical safety – a lot of people have a lot to lose and that she spoke to the media yesterday.
A rehabilitation consultant, Ms Cindy Badman, in a report dated 8 September 2015, recorded the following history taken from Ms Sheehan:
[Ms Sheehan] has reported a gradual onset of symptoms since 9 March 2014 whilst performing duties as an Assistant Director with Department of Immigration and Border Protection. [Ms Sheehan] attributed the onset of symptoms to have been as a result of the Department failure to resolve an allegation of alleged terrorist plot made against her partner (Mr Mark Anstee) and herself as a co-conspirator.
Dr Georgina Flanagan
In a medical certificate of 2 July 2015, Ms Sheehan’s treating General Practitioner, Dr Georgina Flanagan, recorded that she examined [Ms Sheehan] on 2 July 2015 in relation to the injury stated as occurring on 9/3/14 and I find that She [sic] is suffering from (diagnosis) anxiety and depression and based upon the information available to me, this was caused by: ongoing allegations about terrorism from dubai [sic]. Dr Flanagan’s clinical notes include an entry dated 8 May 2014:
together in Dubai with fiancee in september last year was employed in dept of immigration [c]ame home and finance was going to follow about ten weeks later. He was accused of plotting to blow up consulate and was asked to leave then was summarily dismissed from his position. Had left dubai and gone to germany now not given reason for dismissal. She was also implicated but the charges were not investigated as felt ther was no substance. Very stressed about partner and how he has been treated anxious down [sic]
Dr Flanagan authored a report dated 21 August 2015 in which she described how the security allegations made against Mr Anstee had taken a very protracted course with increasingly significant stressors that have had an adverse effect on her health… Dr Flanagan noted that Ms Sheehan had become increasingly depressed with migraines and anxiety and developed suicidal ideation… She opined:
I feel she had no previous problems that contribute to her current state but feel the treatment to her partner has been her most significant stress…
Ms Sheehan told the Tribunal she disputed this assessment.
Mr Flanagan’s clinical notes record (on 1 September 2014) a diagnosis of anxiety with depression. The notes make no reference to the Harare incident.
Ms Susan Pelengaris
Psychologist Susan Pelengaris has treated Ms Sheehan since early September 2014. Ms Pelengaris wrote a report for Comcare dated 8 September 2015, stating:
The mere fact that Ms Sheehan has been entrapped in a very long and protracted process/bureaucracy which involved months and months of requests for information to clear her name and that of her partner, at no time did Ms Sheehan feel supported by her Department. Up until 15 June 2015 she and her partner received information to state the allegations were ridiculous and false. Part of her poor mental health is due to constant denial of their plight.
…there is also mounting psychological evidence she is struggling with PTSD…
In this report she diagnosed Major Depressive Disorder, ongoing Generalised Anxiety Disorder and Post-traumatic Stress Disorder (PTSD). Of causation she opined:
… Ms Sheehan has suffered as a result of a complex trauma relating to her work and home life. This has resulted in her experiencing anxiety; depression and suicidal ideation and rumination in regards to the workplace situation which was targeted at her partner but also extensively involved herself, resulting in undermining her ability to cope within her relationship and on occasion within the workplace.
There is no overt reference in the report to the Harare incident, although she refers to Exposure to threatened ‘imprisonment’ having been falsely and wrongly named as a co-conspirator to an alleged terrorism plot as a feature of Ms Sheehan’s PTSD.
The clinical notes of Ms Pelengaris were tendered, covering around 24 consultations. The parties agreed that at no point in these notes was reference made to the incident in Harare. Ms Sheehan told the Tribunal that she and Ms Pelengaris talked about [the Harare incident] a lot.
Dr Sharon Reutens
Consultant Psychiatrist Dr Sharon Reutens examined Ms Sheehan on Comcare’s behalf on 7 September 2015. In her report of 17 September 2015 she observed that Ms Sheehan:
… gave a very detailed history of events, and I have shortened it for relevance and for my understanding, therefore it does not reflect her very detailed and precise account, nor all the aspects of the incident that she recounted…
Dr Reutens diagnosed adjustment disorder with mixed anxiety and depressed mood. She stated:
… Ms Sheehan described experiencing symptoms of anxiety which most probably constituted a normal reaction, when she first heard of the allegations against Mark. She described more significant anxiety and sleep disturbance as well as panic attacks from the time that she found out that David Moore had entered her apartment…
Dr Reutens identified four main factors that contributed to Ms Sheehan’s claimed medical condition. They were:
a.The allegations against Mark;
b.Her sense that she and her partner were unsupported and that deliberate harm and obfuscation was undertaken;
c.Being told that there were accusations that she was implicated in the bomb plot; and
d.Feeling that she had been denied natural justice and that her character had been impugned.
In response to a question regarding the level of contribution of each of these factors, Dr Reutens opined:
It is difficult to discern the level of contribution for each of the factors… I note her general practitioner stated that the major stressor was her anxiety about the treatment to her partner. As her general practitioner was the contemporaneous treating professional and had seen her on a number of occasions, this is likely to be an accurate assessment.
Ms Sheehan told the Tribunal that when she attempted to tell Dr Reutens about certain matters, including the incident in Harare, Dr Reutens would stop her, telling her we don’t have time for this. Ms Sheehan considered this may have been because Dr Reutens was given specific questions by Comcare to answer, none of which related to the incident in Harare.
Ms Sheehan later prepared a three-page document entitled Clarifying comments – Dr Sharon Reutens’ Psychiatric Report. She told the Tribunal this was prepared to deal with issues which had not been covered by Dr Reutens in her report of 17 September 2015. The document does not refer to the Harare incident. When asked, under cross-examination, why this was omitted, given its asserted significance in the development of her psychological condition, she said that she focused on correction of factual errors in the report of Dr Reutens, rather than omissions.

The circumstances of the Harare incident, in terms similar to the description in paragraph 17 above, were put to Dr Reutens in the witness box. She was asked if this experience was capable of producing PTSD according to the terms of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V). She replied that it would. She also agreed that an aversion to authority figures, of the kind Ms Sheehan displayed during the routine traffic stop on her way to Canberra, was consistent with PTSD deriving from an event like the Harare incident.
She also agreed that, had she been given the details of the Harare incident and evidence of sleep disturbance following the incident, she would have followed this up as being potentially relevant to her psychiatric diagnosis of Ms Sheehan. It was further put to Dr Reutens that sometimes individuals with PTSD make deliberate efforts to avoid thoughts, memories and feelings or even talking about the traumatic event; she agreed this can occur. She acknowledged the existence of delayed onset or delayed expression of symptoms in some such individuals.
Dr Reutens was asked if, having now been given details of the Harare incident and having read the reports of Drs Cohen and Knox, the Harare incident might be a relevant feature of Ms Sheehan’s current presentation and that she may now have PTSD as a result of it. She responded, on the premises given, yes, that is certainly suggestive of a post-traumatic stress disorder.
Dr Doron Samuell
Consultant Psychiatrist Dr Doron Samuell examined Ms Sheehan on 31 August 2016 and produced a medical report on 5 October 2016. He found that she was likely to be suffering from major depression and noted that her narrative was quite disorganised and difficult to follow.
Dr Samuell noted Ms Sheehan was pretty shocked upon speaking to Mr Anstee on 9 March 2014 and became concerned that local police may get involved. He noted the Harare incident in the context of her report of recurring nightmares.
Dr Samuell considered the receipt of information from Mr Anstee about allegations he intended to blow up the Australian Consulate would have been a highly traumatic event that could have precipitated depression. He also considered that the efforts made by Ms Sheehan to clear her name and that of her partner would have conferred considerable stress on Ms Sheehan and may have contributed to her depression. He noted that she expressed considerable frustration with her treatment by the Commonwealth … in relation to efforts to obtain information and to clear her name and that this was a major contributor to the development of her depression. He said She is consumed with a sense of injustice.
Comcare asked Dr Samuel if the following contributed to Ms Sheehan’s condition:
a.    The receipt of the information that her partner had been the subject to an allegation that he intended to ‘blow up’ the Australian Consultant in Dubai; OR
b.    Events that occurred after 9 March 2014 including; Ms Sheehan being aware that allegations had been made against her, efforts by Ms Sheehan and her partner to ‘clear their names’, receipt of information by Ms Sheehan under Freedom of information; OR
c.     Ms Sheehan’s response to events involving her partner; OR
d.    Bullying and harassment directed to Ms Sheehan by the Department of Immigration and Border Protection; OR
e.    Ms Sheehan’s response to her treatment by the Commonwealth and its employees in response to efforts to obtain information and clear her name, and/or the name of her partners; OR
f.   The effects of litigation; OR
g.    A pre-existing, congenital, constitutional or underlying condition; OR
h.    The natural progression of an underlying condition; OR
i.   Any other relevant matters.
Dr Samuell responded as follows:
a.    This was considered to be a highly traumatic event that could have precipitated depression. I did not see Ms Sheehan at that time and cannot confirm retrospectively that this made her depressed;
b.    Undoubtedly these events would have conferred considerable stress on Ms Sheehan and may have contributed to her depression. As I did not see Ms Sheehan at the time, I cannot confirm that she was actually depressed as a result of those events;
c.     Undoubtedly, she was very traumatised by the events concerning her partner. This would have been a major contribution to the development of her condition;
d.    She did not identify bullying and harassment at interview that could have contributed to her condition. I understand that she took exception to decisions and actions made by her employer. What was not clear to me was that her employer bullied or harassed her.
e.    She expressed considerable frustration with her treatment by the Commonwealth and its employees in relation to efforts to obtain information and to clear her name. This was seen by me as a major contributor to the development of her depression.
f.   This is very difficult for me to quantify. She clearly finds this process stressful.
g.    I did not identify any pre-existing, congenital, constitutional or underlying condition.
h.    There was no underlying condition.
i.   I did not identify any other relevant matters.
He nominated no date of injury.
In the witness box Dr Samuell defended his diagnosis of major depression, in preference to that of PTSD. Symptoms which were listed in Dr Cohen’s report of 13 February 2017, said to support the diagnosis of PTSD, were put to Dr Samuell; with the exception of intrusive re-occurrence of nightmares, he said that Ms Sheehan had reported none of those symptoms to him.
Under cross-examination, Dr Samuell described the Harare incident as a dramatisation of what could have happened, as opposed to what actually happened. He said the account of the Harare incident given in her application for reconsideration of 14 October 2015 seems to fantasise about what might have happened to her, rather than what actually did happen. He considered that what actually happened to her would not meet the test in DSM-V for an event precipitating PTSD. He agreed that there can theoretically be delayed onset of PTSD symptoms, but said it was unusual. He said that, in the medical reports of Ms Pelengaris and Dr Flanagan, he saw no evidence of avoidance by Ms Sheehan of symptoms relating to the Harare incident.
Ms Sheehan produced a statement in response to Dr Samuell’s report. She said that she was able to function after receiving the news about Mr Anstee; once he was safely out of Dubai her concern shifted to her possible arrest as a terrorist. She also corrected a number of factual errors. She told the Tribunal that she had given Dr Samuell an 11-page document which he took but did not refer to in his report.
Ms Sheehan told the Tribunal that Dr Samuell’s questions at the interview were focused around what occurred on 9 March 2014, and she had difficulty attempting to provide him with information about the Harare incident. She said he shut me down. Dr Samuell denied this in his evidence.
Dr William Knox
Consultant Psychiatrist Dr William Knox examined Ms Sheehan on 3 November 2016. In a report of that date he diagnosed moderately severe, chronic Posttraumatic Stress Disorder (PTSD). He said that her employment was responsible for her psychiatric injury, and opined The greater part of her injury has arisen from the matters related to Dubai, [with] some contribution from her experiences in Zimbabwe. He ascribed a date of injury as 23 March 2014.
He told the Tribunal that he considered the effect of the Harare incident on Ms Sheehan based on what I was told by Ms Sheehan. Based on a written account provided to him of the incident, he agreed that it was capable of causing a psychiatric sequela in a person.
Dr Knox was asked to explain why Ms Sheehan’s treating psychologist, Ms Pelengaris, failed to identify the Harare incident as a factor contributing to her condition. He responded:
…this lady had had a triple whammy of events, ongoing things of horrific nature. It’s not surprising that it would take some time. If Ms Pelengaris had focused on one aspect of the causation and not another…
He referred to the difficulty in taking a history from Ms Sheehan, and added:
…the other [Harare] incident was a briefer event so it may be that somehow there has been an emphasis on the matters in Dubai rather than what happened in Africa…
Dr Knox considered it reasonable that a traumatic event in the form of the Harare incident might take a long period of time to manifest itself symptomatically. He referred to military patients of his who had coped for a decade or so, suppressing their symptoms until it manifests.
Dr Knox was asked about the impact on Ms Sheehan’s condition of her partner being safe in Germany and she being safely back in Australia. He responded:
There was not further major trauma then. The PTSD was already established; there’s already been the imprint in the brain… She’s already ill…
… for her, at that point then, with her partner away then that issue is not something for her that is relatively minor. She was worried about that for obvious reasons… in the next several period of days… there was some unfolding of events and information in the subsequent days about what had really been going on… and so that uncertainty under such dangerous circumstances is very stressful as well.
Dr Zeeva Cohen
Dr Zeeva Cohen, a Consultant Psychiatrist, examined Ms Sheehan on 7 February 2017 and provided a report dated 13 February 2017. In it she diagnosed PTSD. In relation to its cause, she said:
In my opinion the causative factors include a police carjacking in Zimbabwe, false allegations against Ms Sheehan and her partner related to terrorism and her perception that she had been placed at risk by her employer/the Australian Government in the course of her employment by not being advised of these allegations and the risk that she could have been detained in Dubai had she gone there to pack up her flat or for any reason. The ongoing processes of defending her name, obtaining an apology and feeling used/scapegoated appear to have perpetuated her condition …
In my opinion both the imprisonment and the events in Dubai were significant contributing factors as well as the perceived lack of support by her employer in placing her at risk (of detention in Dubai if she returned there unaware) …
...Ms Sheehan’s injury was caused by all of the above events as well as her concern about her partner. I felt that the concern about her partner was less of an impact on her than the experiences she personally went through herself.
She opined that Ms Sheehan’s most likely date of injury was 18 March 2014, when she developed symptoms of insomnia and anxiety.
In the witness box Dr Cohen was asked to comment on the adverse reaction Ms Sheehan had to the recent police traffic stop on the way to Canberra. She agreed that this reaction could be related to the PTSD she attributed to the Harare incident. She also said that the Harare incident was sufficient in its own right to have caused PTSD, even without the other factors related to Dubai.
THE RELEVANT LEGISLATION
Section 14 is the gateway through which entitlement to compensation under the Act generally must pass. It 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 s 5A 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.
The term disease is, in turn, defined in s 5B as follows:
“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.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The Tribunal is faced with clear evidence that Ms Sheehan is suffering a mental illness. The medical evidence ranges across several possible diagnoses, but the Tribunal will adopt the diagnosis found by two of the doctors who appeared before it – and Ms Sheehan’s treating psychologist – namely, post-traumatic stress disorder. Reasons for that finding are set out below.
The medical evidence also demonstrates with abundant clarity that Ms Sheehan’s mental illness, however diagnosed, is the product of the acts or omissions of the Commonwealth of Australia (within which description I include matters related to her employment by the Commonwealth). No other factors were pointed to as contributing to her illness. The Tribunal does not, however, have jurisdiction to make an award of compensation in relation to those acts or omissions generally; its jurisdiction here is limited to acts or omissions related to Ms Sheehan’s employment by the Commonwealth.
Section 14 of the Act makes Comcare, the insurer of various Commonwealth instrumentalities, liable to pay compensation to Ms Sheehan for any injury suffered by her which results in incapacity for work or impairment. That injury, however, must be an employment-related injury. The link with employment is provided if the injury – in this case, a disease – satisfies the terms of s 5B. Pursuant to that provision, a disease is employment-related if was contributed to, to a significant degree, by her employment by the Commonwealth.
The parties agreed Ms Sheehan is suffering from a disease. They identified several factors which may have contributed to that disease. Some of those factors, it was agreed by the parties, were employment-related. At least one factor, the parties agreed, was not. There was disagreement between the parties as whether other factors were or were not employment-related.
On 14 October 2015 Ms Sheehan lodged her request for reconsideration of Comcare’s initial refusal of her claim for workers compensation. In it she crystallised four incidents which she said contributed to her mental illness and which were all employment-related. She attributed dates to each incident:
(a)first hearing of the allegation against Mr Anstee that he intended to bomb the Dubai consulate – 9 March 2014;
(b)being detained by Harare police – 18 March 2014;
(c)the discovery that local police were involved in entering her apartment in Dubai and the initial proposition that she would need to return to Australia via Dubai – 21-23 March 2014;
(d)the meeting in the First Assistant Secretary’s office in Canberra – 27 March 2014.
As the Tribunal hearing in November 2017 progressed, other potential contributing factors – for example a tree falling near her in Harare, bullying and harassment by staff of the Department – were referred to. In addition, some definitional issues arose; the allegation of terrorist involvement against Mr Anstee took several turns, and eventually involved a terrorism allegation against Ms Sheehan herself. By its end, however, this case became essentially a contest between just two of those factors: the revelation that Mr Anstee been accused of terrorist intentions, and the Harare police incident.
The Tribunal does not consider the accusation against Mr Anstee to be employment-related.[1] Conversely, the parties submitted, and the Tribunal accepts, that the Harare incident was employment-related, in that it occurred while Ms Sheehan was travelling between two (temporary) places of employment. There was evidence before the Tribunal that each of these factors could have contributed significantly to the development of her mental illness. It is immaterial for the Tribunal’s purposes as to whether the accusation factor contributed significantly to her illness; even if it did, Ms Sheehan is entitled to compensation if the Harare incident also contributed significantly to the onset of her illness. Accordingly, the essential task before the Tribunal is to determine if it did.
[1] in this regard see the comments of Windeyer J in Federal Broom Co Pty Ltd v Semlich 110 CLR 626 at 641; also Comcare v Canute [2005] FCAFC 262.
CONSIDERATION
It is clear beyond any doubt that the accusation against Mr Anstee of involvement in planning a terrorist act – an accusation that soon implicated Ms Sheehan herself – is and was the principal cause of her mental illness. She noted on about 27 March 2014 her stress, anxiety and desperate need to resolve Dubai matter, and that state of anxiety, centred on the false allegations against her and her partner and the need to rebut them, appears to have abated very little, if at all, over the following two years. Her treating psychologist recorded in September 2015:
…Ms Sheehan has suffered complete mental and emotional exhaustion and continues to suffer nightmares; panic attacks; fear; dread; worry…
Descriptions of this kind about her mental state proliferate during the two and a half years in which she and her partner conducted the crusade to clear their names. Indeed, based on Ms Sheehan’s testimony and demeanour in the witness box, the false accusation issue appears still to be weighing oppressively on her, notwithstanding the government’s retraction of the accusation and apology in August 2016.
The medical evidence is unanimous in identifying the terrorism accusation as a substantial cause of her condition. Dr Flanagan considered in August 2015 that the treatment to her partner has been her most significant stress. Dr Knox opined in November 2016 that The greater part of her injury has arisen from the matters related to Dubai. In October 2016 Dr Samuell observed:
…she was very traumatised by the events concerning her partner. This would have been a major contribution to the development of her condition.
Notwithstanding the solidarity of the doctors on this point, the medical evidence is divided with respect to two seminal matters. The first is whether there were other factors – in particular, the Harare incident – which also contributed significantly to the onset of her mental illness. The second, and closely related, matter is the date on which it could be said she sustained her mental injury.
It is tempting to assume that, because the terrorism accusation became an all-consuming feature of her life, it crowded out any other factors bearing on her mental well-being. However the Harare incident did occur at a time when, on the evidence, Ms Sheehan was emotionally vulnerable. The essential facts of the incident were not contested, though there was argument about the seriousness of the incident in an objective sense.
Care must be taken in the Tribunal’s approach to resolving those matters. In Smith v Comcare[2013] FCAFC 65 the Full Court of the Federal Court considered an appeal from a decision of the Tribunal in which the applicant claimed that his condition of aggravation of osteoarthritis had been contributed to by his employment as a meat inspector. The Tribunal had had regard to s 7(4) of the Act which provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.

The Tribunal had determined a notional date of injury, using this subsection, based on its view of when the applicant first sought medical treatment. It only then considered the question of whether his employment had contributed to a material degree (the test of causation for which the Act provided in respect of an injury occurring before 2007) to the onset of his condition. It concluded that his employment had not so contributed.
The Full Court considered that this approach constituted an error of law. Buchanan J, with whom Greenwood J agreed, characterised the error as follows (at [35]):
The error was making a finding about a matter which arose under s 7(4) of the Act without any foundation upon which to do so, whether by way of prior finding for the purpose of s 14 or by way of assumption.
His Honour considered that this approach may have led the Tribunal to exclude evidence after the notional date of injury which might have been relevant to the issue of material contribution.
While fully appreciating the force of their Honours’ logic in reaching this conclusion, the approach adopted in Smith is less useful in the present proceedings where there are at least two competing and closely-contemporaneous factors, each of which the evidence suggests potentially contributed to the Ms Sheehan’s mental illness. To illustrate this point, I observe that it is impossible to answer the question did the Harare incident contribute significantly to Ms Sheehan’s mental illness? without first answering the question on what date did the accusations against Mr Anstee contribute significantly to her illness?
Nonetheless, consistent with the Federal Court’s approach in Smith, the Tribunal will consider those two questions in this way:
(a)On what date did the accusations against Mr Anstee contribute significantly to her illness?
(b)If the answer to that first question is on or after 18 March 2014, did the Harare incident also contribute significantly to Ms Sheehan’s mental illness?
I will attempt to address these questions in the order given, noting however that much of the medical evidence before the Tribunal takes the form of a comparison between the relative contribution to her illness of the Anstee accusation and the Harare incident. This makes it difficult to isolate these questions from each other.
On what date did the accusations against Mr Anstee contribute significantly to Ms Sheehan’s illness?
By the phrase the accusations against Mr Anstee the Tribunal means to refer both to the initial revelation on 9 March 2014 that Mr Anstee had been accused of planning to bomb the Dubai consulate and to the issues that unfolded over the following weeks in connection with that accusation. For convenience, I will refer to this factor in the development of Ms Sheehan’s illness as the Anstee accusation, noting that what started as a straightforward accusation developed into a multifaceted set of issues which impacted on her over a considerable period of time.
As already indicated, the Tribunal has little difficulty in finding that the Anstee accusation made a significant contribution to Ms Sheehan’s mental condition. Certainly by the end of 2014 it had grown into an all-consuming concern, even an obsession, impacting severely on her mental and emotional well-being. Two years later Dr Samuell aptly noted She is consumed with a sense of injustice. The question that must be addressed, therefore, is not whether the Anstee accusation made a significant contribution to her illness, but when.
The Tribunal is entitled to consider the course of a claimed condition after the date on which it appears to have occurred, noting the insights that course might offer to the origins of the condition: see Costantine and Comcare [2015] AATA 645 at [231]-[232]. On the other hand, in considering a mental illness of some duration, there is a risk of viewing it teleologically, leading one to conclude that if it was of a certain nature after a period of time that it must always have been of that nature. In the present case, there is some evidence for the view that the illness was less severe at its outset and built in intensity as time went by.
Ms Sheehan’s own evidence to the Tribunal was that she was very worried by the initial news that Mr Anstee had been accused, but that this worry was focused on his safety. She told the Tribunal she heaved a huge sigh of relief on hearing that he had reached safety in Germany on about 12 March 2014. She continued to work on her project for the Department in Zimbabwe during this period.
This evidence from the witness box does not sit comfortably with some of the other evidence. In her chronology dated 12 August 2014 she described herself and Mr Anstee as being shocked and horrified by the accusation as at 16 March 2014, notwithstanding that Mr Anstee was by then safely in Germany. In her statement for Comcare dated 13 August 2015 she noted Symptoms of extreme anxiety were present from the time Mark heard about the allegation in Dubai on 9 March 2014. Despite the exhaustive detail into which both these statements go, neither seems to offer much support for the thesis that her anxiety abated once Mr Anstee had left Dubai.
The evidence suggests that Ms Sheehan was deeply disturbed and anxious by the news from Dubai. The Tribunal accepts that there was some relief on around 12 March in knowing that Mr Anstee was not facing arrest, but it is fair to conclude that Ms Sheehan remained profoundly affected by the accusation against him and by the fact that it remained unresolved. Indeed, it must have been obvious by then that such an accusation could have serious implications for her own career as a senior public servant.
Almost all of the evidence relating to Ms Sheehan’s mental state at this time derives from her own descriptions of her feelings. There was no medical examination until some weeks later and only relatively cursory observations by those around her as to her mental state. It is one thing, however, for the Tribunal to assess her mental state based on her self-description; it is quite another for qualified medical practitioners to make that assessment.
As already stated, all the medical evidence attributed a substantial role in the development of her disease to the Anstee accusation. However, the passage of time since the initial stages of her condition seems to have created difficulties in other respects for the examining doctors. Of the four doctors who gave live evidence to the Tribunal, the one whose examination of Ms Sheehan was the earliest was Dr Reutens, and that examination occurred some 18 months after the events of March 2014. All four doctors acknowledged some difficulty in understanding the interplay of the various factors at work in Ms Sheehan’s life during this period, due in large part to the disorganised nature of her narrative.
Dr Cohen acknowledged the contribution made by the false allegations against Ms Sheehan and her partner related to terrorism, but attributed the Harare incident as a causative factor. Consistent with this view, she found the date of injury to be 18 March 2014 – the date of the Harare incident. Indeed she regarded the Harare incident as sufficiently serious by itself to have caused PTSD, even without the Anstee accusation.
Dr Knox testified that the greater part of her injury has arisen from the matters related to Dubai, [with] some contribution from her experiences in Zimbabwe. His asserted date of injury – 23 March 2014 – is in line with that view. There was an apparent contradiction in Dr Knox’s evidence; despite the asserted date of injury, he said of her condition on around 12 March 2014, where Mr Anstee arrived in Germany: The PTSD was already established; there’s already been the imprint in the brain… She’s already ill… However, Dr Knox insisted under cross-examination that the Harare incident on 18 March had made a substantial contribution to her illness, by which I take it that he considered her PTSD to have been in its incipiency by 12 March, but not yet fully developed.
I note at this point that if the evidence of Drs Cohen and Knox was the only medical evidence before the Tribunal, it would have little difficulty concluding that the Harare incident contributed significantly to Ms Sheehan’s illness.
Dr Reutens, in her report of 17 September 2015, makes this observation with respect to causation of the illness:
It is difficult to discern the level of contribution for each of the factors… I note her general practitioner stated that the major stressor was her anxiety about the treatment to her partner. As her general practitioner was the contemporaneous treating professional and had seen her on a number of occasions, this is likely to be an accurate assessment.
In this comment she appears to be acknowledging the difficulty in attributing weight to particular causative factors after the passage of so much time. She defers to Dr Flanagan’s view about what constituted the major stressor.
The Tribunal is mindful that Dr Reutens was not asked in her briefing letter to consider the possible impact of the Harare incident. The evidence is in conflict on the question of whether Ms Sheehan actually drew this incident to Dr Reutens’ attention. Whether she did or didn’t is, however, somewhat immaterial; in fact Dr Reutens did not refer to it in her report, and so it must be doubted that she addressed her mind at that time to the possibility of it contributing to the onset of Ms Sheehan’s disease. Of the factors which were explicitly drawn to her attention at that time she observed It is difficult to discern the level of contribution for each…
Dr Reutens was given some opportunity to address that omission in her live evidence. The circumstances of the Harare incident were put to her by counsel for Ms Sheehan, and she agreed that those circumstances could amount to an event satisfying DSM-V as a cause of PTSD. She agreed that, had she known those circumstances at the time of her interview, she would have followed this up as being potentially relevant to her diagnosis. She opined that the reaction Ms Sheehan had displayed during a traffic stop in Australia could be consistent with PTSD deriving from an event like the Harare incident. Finally, she was asked if, having had the details of the Harare incident and having read the reports of Drs Cohen and Knox, the Harare incident might be a relevant feature of Ms Sheehan’s current presentation and that she may now have PTSD as a result of it. She replied yes, that is certainly suggestive of a post-traumatic stress disorder.
I do not take Dr Reutens’ evidence to amount to agreement that the Harare incident contributed significantly to the onset of Ms Sheehan’s disease, but she certainly considers that a possibility. The Tribunal notes that this uncertainty might have been resolved had Comcare commissioned a supplementary report from Dr Reutens after Ms Sheehan lodged her request for reconsideration where the significance of the Harare incident was highlighted. But it did not.
Of the four doctors giving live evidence only Dr Samuell expressed the view that the Harare incident could not have constituted a foundation for the onset of PTSD. The basis for this opinion was that he considered Ms Sheehan’s account was a dramatisation of what could have happened, rather than a reflection of what did happen. He considered that the events concerned must have constituted an actual threat to her safety for them to qualify as a PTSD-triggering experience. He thought the events in Harare did not rise to that level.
The basis for Dr Samuell’s opinion was cogently presented. However, it stands at odds with the evidence of the three other psychiatrists called before the Tribunal. The Tribunal prefers the evidence of those psychiatrists, to the effect that the circumstances of the Harare incident were capable of inducing the onset of PTSD in Ms Sheehan. In the case of two of those psychiatrists, the evidence was that the incident did indeed make a significant contribution to the onset of PTSD, along with the Anstee accusation. Obviously, this condition satisfies the test of a mental injury set out by the Federal Court in Comcare v Mooi (1996) 69 FCR 439 at 444 – a condition that is outside the boundaries of normal mental functioning and behaviour.
Counsel for Comcare submitted that the report of 8 September 2015 of Ms Pelengaris, though supporting a diagnosis of PTSD, should be accepted as evidence of a date of injury of 9 March 2014. I do not accept that submission. Part of her report might be thought to imply that date of injury, but Ms Pelengaris was expressly asked to nominate which specific incidents caused Ms Sheehan’s condition, and she declined or failed to nominate any particular incident – including the news about Mr Anstee on 9 March.
Taking into account the evidence of Doctors Reutens, Knox and Cohen as to diagnosis and date of injury, the Tribunal finds that Ms Sheehan suffered post-traumatic stress disorder on or soon after 18 March 2014.
Did the Harare incident contribute significantly to Ms Sheehan’s PTSD?
For the reasons given above, the Tribunal considers that the Harare incident did contribute significantly to the development of Ms Sheehan’s PTSD.
Comcare submitted that the notion the Harare incident contributed to her disease is unsupported by contemporaneous records or subsequent statements by her. It maintained that the claim was a recent invention, perhaps linked to legal advice she obtained in October 2016 suggesting the claim at that point had insufficient connection with employment to be likely to succeed.
The Tribunal does find the lack, at relevant times, of any significant reference in her narrative to the Harare incident troubling. Ms Sheehan wrote copiously about the issues in her life – and how she felt about them – in the period from March 2014 onwards. Yet little documentary reference to the Harare incident is to be found until about August 2016, when she spoke about it to Dr Samuell. She appears not to have made any significant reference to it in the course of treatment by Dr Flanagan and Ms Pelengaris. Although the latter referred in her report of 8 September 2015 to exposure to threatened ‘imprisonment’ as contributing to the development of PTSD, the Tribunal accepts Comcare’s submission that this is a reference to Ms Sheehan’s concerns about being arrested in Dubai, not Zimbabwe.
Other evidence however suggests that the purported impact of the Harare incident should not be regarded as a recent invention. The record she made of the incident soon after it occurred suggests it did have some significant impact on her. She told her friend Ms Charvet in a private communication that the incident had been one of the scary experiencing [sic] of my life and that
I just started crying once I was in a cell of an [sic] falling down office with 5 officer abduls all dealing with me. I was not sure if I should offer bribes or run away. It was the last straw for my ability to cope and I did disgrace myself by not being brave …..
The Tribunal notes that the extensive documentary accounts which Ms Sheehan prepared over the three years following the Harare incident were focused on a particular objective: demonstrating her and Mr Anstee’s innocence of the allegation of terrorism. The documents were principally designed to persuade various authorities that the accusations were false. It is not altogether surprising that, for this purpose, Ms Sheehan might have regarded the Harare incident as irrelevant. Even when the documentation was addressed more specifically to the workers compensation context, the false allegations remained in her mind (accurately, in the Tribunal’s opinion) the dominant cause of her mental illness.
There is also evidence before the Tribunal of delayed onset or delayed expression of symptoms relating to a traumatic event such as the Harare incident. Dr Knox considered that this is likely to have occurred in her case; both Drs Reutens and Samuell acknowledged that this phenomenon can occur, though Dr Samuell considered it unusual. That this could have occurred in the present circumstances seems quite plausible to the Tribunal. Ms Sheehan’s life during this period was dominated by the overbearing presence of the allegations against her and her partner; it does not seem surprising that anything not relevant to that issue might be pushed to the back of her mind or suppressed.
The practical effect of Comcare’s submission to the Tribunal is that the evidence of Drs Knox and Cohen that Ms Sheehan was injured by the Harare incident (and the evidence of Dr Reutens that she may have been so injured) should be discounted if the Tribunal does not consider that her evidence about its impact on her to be credible. In this respect, Dr Knox no doubt spoke for all of the psychiatric witnesses when he said that he is, in reaching a diagnosis, dependent to some degree on the account of events given by the person he is examining.
The Tribunal accepts that, in some exceptional circumstances, it would be appropriate to reject psychiatric evidence where the psychiatrist regarded the applicant as credible but the Tribunal did not. It may be, for example, that the Tribunal could have before it evidence, damning of an applicant’s credibility, which was not available to the psychiatrist. But the Tribunal should ordinarily hesitate to reject evidence simply because it had a different view of an applicant’s credit. To consider that what the psychiatrist heard in his or her surgery was not to be believed is to intrude, to some extent, into the psychiatrist’s clinical judgement. The training and experience of a long-serving psychiatrist can be assumed to give him or her insights into the truthfulness or otherwise of a patient’s account. The better approach is that the Tribunal should take such insights into account, and weigh them against any other evidence available to it.
Finally, the Tribunal notes that Ms Sheehan did refer to the Harare incident during her examination by Dr Samuell in August 2016, some two months before she apparently took legal advice about her claim for compensation. This should be regarded as inconsistent with the hypothesis that her emphasis on the incident was a recent invention following legal advice.
Counsel for Comcare submitted that the Harare incident, viewed objectively, was much less threatening than Ms Sheehan suggested it made her feel. He submitted that, in essence, she was taken to the police station by people whom she knew to be police officers and was issued with a small fine for a minor traffic offence. However, this anodyne interpretation of the event is evidently not how Ms Sheehan experienced it. I note also the unchallenged evidence she gave that the High Commissioner and other Australian staff in Harare later recounted war stories of Zimbabwean police behaviour which may have fuelled the anxiety in her mind about the risk this incident had potentially posed to her.
On the balance of probabilities, the Tribunal finds that the Harare incident did contribute significantly to the development of Ms Sheehan’s PTSD. On the basis that this contribution resulted in an injury which occurred on or soon after the date of that incident, other, later factors (such as the searching of her apartment in Dubai and the requirement to travel via Dubai) cannot have contributed to that injury. As the Harare incident is clearly employment-related, the reviewable decision of 11 December 2015, that Comcare had no liability for her claimed condition, must be set aside.
CONCLUSION
The Tribunal sets aside the reviewable decision of 11 December 2015, and instead finds that Comcare is liable under s 14 of the Act for Ms Sheehan’s Post-Traumatic Stress Disorder suffered on or soon after 18 March 2014.

I certify that the preceding 169 (one hundred and sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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Associate
Dated: 22 December 2017

Date(s) of hearing: 27, 28, 29, and 30 November 2017

Date final submissions received: 30 November 2017

Counsel for the Applicant: Mr Steven Whybrow

Solicitors for the Applicant: Lander & Co

Counsel for the Respondent: Mr John Wallace

Solicitors for the Respondent: Lehmann Snell Lawyers

Date(s) of hearing:	27, 28, 29, and 30 November 2017
Date final submissions received:	30 November 2017
Counsel for the Applicant:	Mr Steven Whybrow
Solicitors for the Applicant:	Lander & Co
Counsel for the Respondent:	Mr John Wallace
Solicitors for the Respondent:	Lehmann Snell Lawyers