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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sheehan and Comcare (Compensation)

Details

AGLC: Sheehan and Comcare (Compensation) [2017] AATA 2777
Case: [2017] AATA 2777
Decision Date: 22 December 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Sheehan against a decision by Comcare to deny her workers' compensation claim for an adjustment reaction with mixed emotional features. Ms Sheehan had lodged her application on 19 July 2015, asserting her injury occurred on 9 March 2014, the date she first learned of accusations against her partner. Comcare initially denied liability, a decision affirmed upon reconsideration, leading Ms Sheehan to seek administrative review by the Tribunal. The core of the dispute revolved around the cause and timing of Ms Sheehan's alleged injury, specifically whether it was a consequence of her employment.

The Tribunal was required to determine whether Ms Sheehan's employment contributed to her condition to a significant degree, and if so, to identify the date of injury. A key legal issue was whether a dominant cause of her condition, such as the accusations of terrorism against her partner and herself, could "crowd out" other contributing factors, such as a traffic incident that occurred while she was travelling between two places of employment in Harare. The Tribunal also had to consider the impact of delayed onset or expression of symptoms and the admissibility of medical evidence in light of the credibility of the witness providing it.

The Tribunal reasoned that while the accusations of terrorism were undoubtedly the principal cause of Ms Sheehan's mental illness, this did not preclude other factors from also contributing significantly. It accepted that the Harare traffic incident, which occurred while Ms Sheehan was travelling between two temporary work locations, was employment-related. On the balance of probabilities, the Tribunal found that this incident did contribute significantly to the development of Ms Sheehan's Post-Traumatic Stress Disorder. Consequently, the Tribunal determined that the injury occurred on or soon after the date of the Harare incident, meaning later factors could not have contributed to that specific injury.

Accordingly, the Tribunal set aside the reviewable decision of 11 December 2015. It substituted a finding that Comcare was liable under section 14 of the Safety Rehabilitation and Compensation Act 1988 for Ms Sheehan's Post-Traumatic Stress Disorder, which it determined occurred on or soon after 18 March 2014.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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]

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.