Sokanos, J. v Commonwealth of Australia
[1991] FCA 484
•16 AUGUST 1991
Re: JAMES SOKANOS
And: COMMONWEALTH OF AUSTRALIA
No. S G126 of 1990
FED No. 484
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)
CATCHWORDS
Administrative Law - Compensation (Commonwealth Government Employees) Act 1971 - appeal from the Administrative Appeals Tribunal - whether substantial compliance by Tribunal with the obligation to give reasons - claim in respect of a psychological condition - whether Tribunal made sufficient findings of fact as to the nature of the condition, and as to stress arising from the employment - whether error of law in the formulation of the central issue to be decided
Administrative Appeals Tribunal Act 1975, ss.43(2B), 44
Compensation (Commonwealth Government Employees) Act 1971, ss.5, 27, 29
HEARING
ADELAIDE
#DATE 16:8:1991
Counsel for the applicant : Mr P.A. McNamara
Solicitor for the applicant : Jervis, Smith and Thomas
Counsel for the respondent : Mr R.W. Evans
Solicitor for the respondent : Australian Government Solicitor
ORDER
The appeal be dismissed with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal which affirmed the determination of a delegate of the Commissioner for Employees' Compensation that the Department of Social Security ("the Department") was not liable to pay compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") in respect of a condition of anxiety and depression suffered by the applicant. The determination of the delegate made on 2 November 1987 was that the applicant had failed to establish to the satisfaction of the delegate that the applicant sustained either personal injury arising out of or in the course of his employment with the Department or that he contracted a disease, or suffered an aggravation, acceleration or recurrence of a disease, to which his employment was a contributing factor.
An appeal to this Court is limited to questions of law only in accordance with s.44 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). This limitation on the jurisdiction of the court assumes importance in this case in light of a number of submissions that were made on the applicant's behalf.
The applicant was born in Greece in 1949 and migrated to Australia at the age of six years. He completed his secondary education at the end of year 11. He completed part of an accountancy course and worked in this field for some three years before joining the Commonwealth Public Service in May 1975. He initially worked in the Taxation Office. He was appointed to the Department in 1977 as a Clerical Assistant Grade 1 and a few months later was promoted to Class 4, a classification he held for six or seven years. He worked as a counter officer, a position which required him to respond to public enquiries about social services. In 1983 he was promoted to the position of a relieving field officer, a role that required him to visit people in their homes and nursing homes in relation to social security matters, although he also assisted with counter work during busy periods.
The applicant alleges that his work as a counter officer was stressful, and that the work had a cumulative effect on him so that he eventually reached the stage where he was lacking the strength to go to work and lacking motivation. He found that his transfer to field work provided some escape from the stress of counter duties. However, at about the time of this transfer there was also a change in the management structure within the Department which brought him under the supervision of Ms Hawkins who, he believed, unreasonably criticised his work performance, impeded his promotion prospects, and finally in February 1985 was instrumental in having his temporary appointment as a field officer terminated. This led to his return to counter duties. During the period 1983 to 1985 the applicant alleges that friction developed between him and other people with whom he worked. After his return to counter duties in February 1985 he worked for only a short time. Stress associated with his interaction with Ms Hawkins, the termination of his appointment as a field officer, and the renewed stress of counter duties caused his health to rapidly deteriorate. The applicant says he felt despondent and disillusioned, could not sleep, did not have regular meals, suffered migraines and chest pains, and felt depleted. He left work on 25 March 1985, and he has not returned.
It is not necessary to canvass the complex chain of events which has occurred since he left work, beyond recording the following matters. From 25 March 1985 he was granted six weeks sick leave in order to have a varicose vein operation on his leg. He then took long service leave from 11 June to 10 September 1985, then unpaid leave to 15 December 1985 at which time he commenced to receive sickness benefits as a beneficiary under the Social Security Act 1947. Commencing from 11 February 1986 the applicant underwent quarterly examinations by a Commonwealth Medical Officer. The assessment on each occasion reported the applicant as being unfit for work. A claim for workers compensation was first lodged on 4 May 1987.
When the matter came on for hearing before the Tribunal the parties agreed that the Tribunal should decide the entitlement of the applicant under the provisions of the Compensation (Commonwealth Government Employees) Act 1971, that is his entitlement up to 1 December 1988 when that Act was repealed by the commencement of the Commonwealth Employees' Rehabilitation and Compensation Act 1988. The Tribunal was not invited to consider the applicant's entitlement thereafter, and no question arises on this appeal as to the operation of the transitional provisions of the 1988 Act.
Before the Tribunal, the applicant's evidence detailed the stresses he experienced in the course of his regular employment, especially on counter work, and his "persecution" by Ms Hawkins. Evidence was called on his behalf from his general medical practitioner Dr Kerry and from a psychiatrist Dr Le Page.
Dr Kerry had been the applicant's doctor for some ten years. Prior to 1982 he treated him only for minor ailments. In May and October 1982 he had prescribed an hypnotic drug as the applicant was complaining of a lack of sleep. In February 1985 the doctor noticed for the first time that the applicant was exhibiting signs of frustration, anxiety and depression. From June 1985 Dr Kerry had issued certificates for continuous sick leave for an anxiety state. From the history he received from the applicant Dr Kerry related his condition to his employment.
Dr Le Page first saw the applicant on reference from Dr Kerry on 28 August 1987. On that occasion the doctor diagnosed the applicant's condition as a reactive stress disorder and a phobic anxiety state about the Department about which he was expressing feelings of persecution and subjective stress experienced whilst at work. In a later report dated 14 April 1988 Dr Le Page described his diagnosis as a fundamental paranoid personality disorder which arose from work related experiences superimposed on a major personality problem.
In essence the applicant's case was that since March 1985 he had been incapacitated for work as the result of the mental disorder diagnosed by Dr Le Page which was either a disease or an aggravation or acceleration of a disease, causally related to his employment such that by operation of the Act the respondent was liable to pay compensation including weekly compensation: see the definition of disease in sub.ss.5(1), 27(1), 29(1), 29(2), 31(4) and ss.45 and 46.
The effect of the decision of the Tribunal was to reject this claim. One ground of appeal, which has been strenuously argued, contends that the Tribunal failed to comply sufficiently with its legal obligation to give reasons for its decision. Relevantly the AAT Act provides:
"s.43(1) ...
(2) Subject to this section and to ss.35 and 36D, the Tribunal should give reasons either orally or in writing for its decision.
(2A) ...
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."
In Dornan v Riordan (1990) 24 FCR 564 at 573 the Full Court held that a substantial failure to state reasons for a decision on the part of a decision-maker governed by statutory provisions, similar to those in s.43 of the AAT Act, which make the statement of reasons a requirement of the exercise under the statute of the decision-making power, constitutes an error of law which enlivens the power of the court to set aside the decision. It is convenient to deal with this ground of appeal first as it requires a close examination of the lengthy reasons for decision published by the Tribunal.
A review of decided cases in relation to the operation of sub.s.43(2B) was undertaken by Foster J. in Federal Commissioner of Taxation v Cainero (1988) 88 ATC 4427 and by Lockhart J. in Politis v Federal Commissioner of Taxation (1988) 88 ATC 5029. I refer in particular to the statement of Lockhart J. in the latter case at 5032 that:
"...when this Court hears appeals from administrative tribunals - which are the bodies entrusted by Parliament with the task of reviewing decisions of a particular administrative character - the Court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole."
The material before the Tribunal included the documents lodged by the respondent pursuant to s.37 of the AAT Act. These documents contained medical reports from Dr Kerry and Dr Le Page, and from another psychiatrist Dr Radeski who had examined the applicant in May 1986 and in May 1987 at the request of a Commonwealth Medical Officer. The reports of the psychiatrists clearly influenced the course of evidence led before the Tribunal. In reports written in 1987 and 1988 Dr Le Page stressed the importance of ascertaining whether the applicant's complaints of persecution and stress at work were reality based. In his report of 14 April 1988 he observed that if:
"...there was no genuine basis for his alleged complaints of persecution, then one could say that his subsequent emotional disorder was a function of a basic and severe personality disturbance.
If, however, it can be established that there was some basis in fact for his complaints, then one could say that his work conditions or experience did in fact contribute to his severe paranoid disorder, and his expressed phobic anxiety."
Dr Radeski also wrote, on 20 December 1987,:
"The statement that a stress disorder is work-related must be capable of verification by enquiry as to whether in fact the stress as seen by the patient does actually exist."
Before the Tribunal the respondent did not dispute that the applicant was incapacitated by a psychological condition but did dispute that the condition had any relevant causal connection with his employment. The respondent contended that the condition was an endogenous one unrelated to the employment. A great deal of attention was given in the evidence to the nature of the applicant's work and to his relationship with Ms Hawkins and other people with whom he worked. On the respondent's behalf, besides medical witnesses, Ms Hawkins and six other officers of the Department gave evidence. The respondent's case, as revealed in the cross-examination of the applicant, included allegations that if the applicant's psychological condition were caused or contributed to by stress (a matter which the respondent disputed) the operative stress was not related to his employment but to aspects of his personal lifestyle including his gambling habits and the gambling debts which he had incurred.
In its reasons for decision the Tribunal, after identifying the sources of evidence, and commenting on the breadth of it, said (in para.4):
"All of this pointed to the central issue in this appeal, which is for the Tribunal to determine whether the incapacity of the applicant at the relevant time was a manifestation of an inherent condition or was itself a condition induced by the applicant's working conditions and experiences in the work place. Even if the condition (injury) was inherent, the appellant's appeal must succeed if the conditions experienced provided aggravation, acceleration or recurrence of that condition or injury."
This passage has been criticised by counsel for the applicant as mis-stating, as a matter of law, the issues which fell for decision. It will be necessary to return to that submission later. Even if there are shortcomings in the statement, clearly enough it identifies the central issue as one relating to causation.
The Tribunal then summarised the personal background of the applicant, the different positions he had held within the Department, and his complaints of stress associated with his work as a counter officer and with other events leading up to the commencement of his absence from work on 25 March 1985. The Tribunal also summarised the sequence of events since then. These summaries lead into para.15 of the reasons where the Tribunal says:
"Much of the applicant's evidence related to the interactions with his colleagues, particularly his supervisor, Ms Hawkins. His evidence indicated conflict and a difference in attitudes and viewpoints which influenced his reactions to his work and his health. These differences arose from his lack of punctuality after breaks during working hours, his activities with the TAB, his visits to the Hellas Soccer Club, an episode in which plant material was alleged to have been found in a car used by him, and his version of episodes of conflict with Ms Hawkins. The Tribunal noted these aspects of his work and also had an opportunity to assess his general bearing and credibility. Without making a finding as to the merits of the two protagonists or of the versions of different events as presented by the applicant and by other officers of the Department, the Tribunal finds the applicant to be articulate in his version of events, but the issue remains open as to what effect, if any, this sequence of events had on his mental condition and capacity to work."
The matters referred to by the Tribunal - the applicant's punctuality, his TAB activities and so on - were topics upon which he had been cross-examined, and to which the evidence of one or more of the respondent's witnesses was directed. The cross-examination, and evidence, went beyond merely suggesting that the applicant was a regular visitor to the TAB during working hours. The respondent's case asserted that the applicant gambled on horses and cards, and that he had incurred heavy gambling debts which he was being pressured by "heavies" to repay. These various events were obviously treated by counsel for both parties as highly relevant to the questions of whether there was any reality in fact to the work place stresses alleged by the applicant, and whether he had experienced stresses outside of his employment. Because of the importance of these matters to the diagnosis and cause of the applicant's psychological condition, it could be expected that the Tribunal would attempt to resolve the disputed matters of fact, and reach specific findings on these topics. Although the Tribunal said that it made no such findings, counsel for the applicant submitted that to arrive at the decision which it did the Tribunal must have resolved at least some of these conflicts adversely to the applicant, and had done so for an undisclosed reason. That it had resolved at least the questions of gambling and gambling debts adversely to the applicant gained support, so it was contended, from subsequent references made by the Tribunal later in its reasons to the alleged gambling activities when discussing the medical evidence.
During argument I was inclined to think there was substance in this submission, but having now had the opportunity to consider the evidence and the reasons for decision in more detail I am satisfied that the Tribunal did not fall into the error alleged, and for good reason did not make findings on the disputed topics referred to in para.15. The evidence of the respondent's witnesses on many topics was vague and non-specific as to time. There were significant inconsistencies between the witnesses. On some important points the weight of the evidence from the respondent's witnesses suggested that Ms Hawkins was mistaken about aspects of the events which happened, and her evidence was riddled with hearsay. Yet, concessions made by the applicant that there had been conversations with one or more of the respondent's witnesses on occasions, and touching the topics alleged by them, lent some weight to the respondent's case. In the confused state of the evidence the Tribunal understandably refrained from making any specific findings, and said so, thereby revealing that part of its process of reasoning.
What the Tribunal intended to convey by the statement, "the Tribunal finds the applicant to be articulate in his version of events, but the issue remains open as to what effect, if any, this sequence of events had on his mental condition and capacity to work" is not altogether clear, but when the reasons for decision are read as a whole I infer that the Tribunal was saying that it would consider the balance of the evidence on the footing that the version given by the applicant about the various disputed incidents was not discredited by the evidence of the respondent's witnesses.
In the paragraph which immediately follows para.15 the Tribunal records the applicant's denial that borrowings he had made were to meet gambling debts, and nowhere does the Tribunal say that it rejected this denial. In my view the Tribunal did not do so implicitly at any point in its reasoning.
The Tribunal next turned to the medical evidence, the substance of which it summarised. It is sufficient to repeat from that summary that Dr Kerry considered that the applicant's symptoms of anxiety and depression which he first noted from February 1985 had continued unabated and were related to his work. The applicant repeated the same complaints about work place stresses on every occasion that Dr Kerry discussed the matter with him, and although Dr Kerry acknowledged that his opinion depended on the reliability of the history which the applicant had given him, he had no reason to doubt it. Dr Kerry said he would defer to the opinion of the psychiatrists on matters of diagnosis.
Dr Le Page's diagnosis has already been mentioned.
Dr Radeski, although he had seen the applicant on two occasions in 1986 and 1987, remained uncertain of a diagnosis when he first gave evidence. He was prepared to accept that a stress reaction was a possible diagnosis but there were features of the applicant's history and presentation which led him to suspect that he was suffering a paranoid disorder that was unrelated to stress and the events at work which he recounted. His complaints on those matters could be thought to be symptomatic of an underlying paranoid disorder and not descriptive of events that "added anything to the condition by way of acceleration or exacerbation or aggravation".
The other medical witness called at trial, Dr Goldney, did not examine the applicant until 8 March 1990. Dr Goldney gave evidence that at the consultation the applicant gave a convincing description of thought disorder, usually associated with schizophrenia. Dr Goldney believed schizophrenia to be the most likely diagnosis. He believed the prognosis to be poor and that the applicant was not fit to continue his employment. He doubted that the applicant's condition was related to work and suspected that his perception of work had been coloured by his illness, rather than the work causing or contributing to his condition.
After Dr Goldney had given evidence the Tribunal acceded to requests that Dr Le Page and Dr Radeski be recalled to comment on Dr Goldney's diagnosis. Dr Le Page disagreed with it, and maintained his opinion that the applicant suffered a personality disorder of a paranoid nature, to which the applicant's work had contributed because he believed he was in conflict with his superiors and was being persecuted.
Dr Radeski, however, agreed with Dr Goldney's diagnosis of schizophrenia which he considered to be consistent with his own views, updated by the time which had passed since he last saw the applicant.
At para.33 of the reasons the Tribunal said:
"In the light of these conflicting opinions given in evidence by the expert medical witnesses, the Tribunal has sought common ground between them and for some explanation of the differences as a basis for determining what, as a matter of probability, the true position was during the relevant period."
By "relevant period" the Tribunal presumably means the period from about 1982 leading up to the manifestation of an incapacity to work in 1985. The reasons for decision, following para.33, continue to discuss the medical opinions, and in doing so the Tribunal refers to the fact that Dr Kerry and Dr Le Page had each conceded that if the applicant had indulged in gambling and had incurred gambling debts which he was being pressed to repay, it would be necessary to reassess his opinion. Counsel for the applicant submitted that these references to the possible gambling activities of the applicant, coupled with the later rejection of the opinions of Dr Kerry and Dr Le Page, indicate that the Tribunal did resolve the gambling issue adversely to the applicant, contrary to what was said earlier in para.15. However, I think the references to gambling in relation to the evidence of Dr Kerry and Dr Le Page were intended only to indicate that the opinions of the two doctors were dependent on the reliability of the histories which they had been given. Their evidence about the relevance of gambling activities was used to illustrate this point, a point which the Tribunal clearly stated in the opening words of para.41 of the reasons which commence:
"It is clear to the Tribunal that the diagnoses of the doctors have necessarily been dependent upon the version of events presented to them by the applicant and that at times significant aspects of the applicant's life style or medical condition were not included in his presentation of symptoms to the doctors..."
In the balance of para.41, and in paras.42 and 43 the Tribunal indicates the respects in which the histories obtained by Dr Kerry and Dr Le Page were deficient. In the case of Dr Le Page he had not been told by the applicant that he gambled - a fact that the applicant admitted in his evidence although he said it was confined to small bets, made out of working hours, for entertainment. That was part of his "life style". Again the Tribunal made no finding that the applicant had in fact incurred gambling debts and been pressured to pay them. As counsel for the applicant submits, it is difficult to follow the logic of the reasoning which ends in the conclusion, shortly afterwards expressed by the Tribunal, that the evidence of Dr Goldney is to be preferred if no such finding is made. Yet an error in logic in reasoning to a conclusion of fact does not involve an error of law: Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 356. Furthermore, the applicant's failure to give to Dr Le Page part of his life style history was a matter open to the Tribunal to take into account. That part of the life style history had earlier been given by the applicant to Dr Radeski who in May 1986 recorded: "Previously, he had indulged in a lot of gambling but claims that he never really lost very much".
In the case of Dr Kerry the Tribunal observed that the applicant had omitted to tell him that when he left work on 25 March 1985 he did so on sick leave to undergo an operation on his leg. Further, he failed to inform Dr Kerry prior to 1985 about his feelings of stress which he believed he was experiencing at work. These omissions the Tribunal considered to be significant. They observed:
"Together, these two omissions on the part of the applicant throw a degree of doubt on the manner in which he presented himself to Dr Kerry..."
The Tribunal expressed its ultimate conclusion in the final two paragraphs of the reasons which read:
"44. The Tribunal, in considering the medical evidence and the demeanour of the applicant, is satisfied that the evidence of Dr Goldney, supported by Dr Radeski, is to be preferred to that of Doctors Kerry and Le Page.
45. The Tribunal, in arriving at its decision, has taken into account the evidence as a whole and is satisfied and finds that the relationship between the applicant and his supervisors was not as stressful as was presented by the applicant and argued on his behalf by Mr Soulio. The Tribunal accepts that the counter duties may have been arduous but does not accept that they were as stressful as the applicant saw them to be at the time or during the hearing. The Tribunal finds that the stress experienced by the applicant at that time was a measure of the gradual emergence of the indigenous (sic) condition which was later to become manifest in a diagnosis of schizophrenia, and that the emergence of this condition was not aggravated or accelerated by the conditions at the applicant's work."
These two paragraphs must be read together in light of the matters which the Tribunal has earlier discussed. The reference to "demeanour" of the applicant is not further explained. I think the submission of counsel for the applicant must be correct that the ultimate decision shows that the Tribunal drew an adverse inference about the reliability of the applicant's evidence from his demeanour. The reasons would have been clearer had the Tribunal said so, but there can be no real doubt that the Tribunal's assessment of the applicant's demeanour was the reason which led the Tribunal to discount the applicant's description of the stresses at work, both in the performance of his regular duties as a counter officer, and in his relationship with his supervisors. That clear finding of fact was important to the assessment of the medical evidence. The Tribunal had already stated its conclusion that the opinions of Dr Kerry and Dr Le Page were dependent on the versions of fact presented to them by the applicant. The effect of the findings that the relationship between the applicant and his supervisors, and the level of stress experienced as a counter officer, were not as the applicant had said, bore on the reliability of the opinions of the doctors that the applicant's psychological condition was causally related to his work.
Importantly, the Tribunal made decisive findings of fact: the condition which the applicant suffered was schizophrenia, an endogenous condition which gradually emerged whilst he was still at work; and that the emergence of the condition was not aggravated or accelerated by conditions at work.
I have discussed the reasons for judgment at length in deference to the painstaking analysis to which many paragraphs were subjected by counsel for the applicant. However, I am not persuaded that the Tribunal reached its ultimate conclusions by making undisclosed findings of fact that the applicant had, contrary to his evidence, engaged in extensive gambling activities, or that he had gambling debts he was being pressured to pay, or that he had pursued any of the other non-work activities about which inconclusive suggestions were made in the course of the respondent's case. In my opinion the Tribunal has disclosed its process of reasoning. It has referred to the evidence. It has disclosed those matters on which it has refrained from making material findings of fact, and those matters upon which it has made findings. The decision of the Tribunal to accept the opinion of one expert witness in preference to that of others was a matter largely of judgment. Had the Tribunal merely expressed a preference for Dr Goldney over the other doctors without offering any explanation for its preference that determination may have amounted to an error of law: Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd and Anor (1983) 3 NSWLR 378 at 381 and 386. In the present case however the Tribunal did state reasons for its preference. It considered that inadequacies in the history given by the applicant to the doctors who supported his case raised doubt about the reliability of their opinions.
The notice of appeal alleges failure to comply with sub.s.43(2B) of the AAT Act in a number of specific respects. It contends that the Tribunal failed to find whether the applicant suffered an injury or disease within the meaning of the Act, whether the condition of schizophrenia constituted an injury or disease, and whether that condition arose in circumstances which attracted liability under ss.27 and/or 29 of the Act: see para.4(2)(a), (b), (c) and (d) of the notice of appeal. In my opinion these grounds of appeal are not made out. The Tribunal's acceptance of Dr Goldney's evidence, the substance of which is recorded in the reasons for decision, carries with it an implicit, but clear, finding, as do the express terms of para.45 of the reasons for decision, that the applicant suffered an endogenous condition namely schizophrenia. Although the Tribunal has not said expressly that this condition constitutes a disease within the meaning of the Act, there can be no doubt that it does, as counsel for the applicant conceded. The finding that the condition was not "aggravated or accelerated by conditions at the applicant's work" indicates that the Tribunal treated the condition as one to be considered under s.29 of the Act. For the purposes of the Act "injury" does not include a disease or the aggravation, acceleration or occurrence of a disease: sub.s.5(1). On the findings of the Tribunal there was no occasion to consider whether the applicant suffered "personal injury arising out of or in the course of his employment" so as to attract liability under s.27 of the Act.
It is further contended that the Tribunal failed to comply with sub.s.43(2B) in that it failed to make findings as to the nature of the applicant's work with the respondent, in particular as to his counter and other duties, and as to his relationship with Ms Hawkins and others, and failed to make findings as to the circumstances in which the applicant was "demoted to work on the counter in 1985". It is contended that findings on these matters were necessary to decide between the different diagnoses proffered in evidence from the medical practitioners. See paras.4(2)(e) to 4(2)(j) of the notice of appeal. Apart from the Tribunal's finding in para.45 that the relationship between the applicant and his supervisors, and the counter duties, were not as stressful as the applicant said, there were no findings made by the Tribunal on these matters. Although it is contended that the omissions alleged constitute errors of law because the findings were necessary to resolve the issues raised by the case, the argument on these points was in substance a challenge to the correctness of the ultimate findings of fact in paras.44 and 45 of the reasons. An appeal lies to this Court only on questions of law, but even if this were a full appeal on the papers on both fact and law I do not think the contentions advanced could succeed. The challenge assumes that if there were stressful situations at work, or situations which the applicant perceived as stressful in his state of emerging schizophrenia, then on any view of the medical evidence it must follow that the emerging condition would have been aggravated or accelerated, thereby bringing the applicant within s.29 of the Act. On this assumption counsel for the applicant placed particular stress on the events at work in February 1985 which led to the termination of the applicant's relieving position as a field officer, and his "demotion" to counter duties. That there were acrimonious meetings involving the applicant and Ms Hawkins which led to this decision was not disputed by the respondent's witnesses. The point of contest was not the happening of the meetings, but the reason and justification for the change in the applicant's classification. The coincidence between the happenings at work in February 1985 and, on the applicant's case, a worsening in his condition is striking. That coincidence was properly stressed in the course of the hearing before the Tribunal. It was also a matter put to Dr Goldney in the course of his cross-examination, as were the other incidents and circumstances alleged by the applicant to have caused him stress. These matters having been put to Dr Goldney, he was then asked the question:
"If what I put to you as the stressors that he found in the work place did exist, might they explain the onset, or the more rapid onset of his condition?"
and he answered:
There is a very slight possibility but I really think it is - it is a possibility to be considered and then on balance to be disregarded, I think."
This answer, upon the acceptance of Dr Goldney's evidence, is fatal to these grounds of appeal. The assumption which underlies the submission is not made out. It was Dr Goldney's opinion that the disease suffered by the applicant emerged and developed independently of the influence of the various events recounted by the applicant as stressful. This was the nature and character of the disease as found by the Tribunal. On that finding the various events relied on by the applicant as stressful were irrelevant to the contraction and development of his disease.
In my opinion it was open to the Tribunal to find, as it did, that the evidence of Dr Goldney was to be preferred. Even if it were open to this Court to review findings of fact made by the Tribunal, the Tribunal had the benefit of seeing and hearing the witnesses, and I do not think that the applicant could discharge the onus of showing that the finding of fact was contrary to the evidence. However this is not an appeal on matters of fact. I do not detect any omission on the part of the Tribunal to make a finding of fact that was essential to the determination of the case. I do not consider there has been an error of law as these grounds of appeal contend.
The above observations are also sufficient to dispose of the further ground of appeal (described as the "fourth question of law) which complains that such findings of fact as were made by the Tribunal in conjunction with the evidence should have led the Tribunal to find that the applicant suffered an aggravation of the disease schizophrenia which aggravation was contributed to by his employment and was therefore compensable. On the evidence of Dr Goldney the matters of stress complained of, even to the degree complained of by the applicant, were not, as a matter of probability, causally related in any relevant sense to the emergence of, or to the aggravation or acceleration of, that condition.
A further ground of appeal contends that the Tribunal, notwithstanding its wide powers under sub.s.33(1) of the AAT Act to receive material not strictly in accordance with the rules of evidence in the interests of natural justice and fairness, should not have permitted hearsay evidence from Ms Hawkins and other witnesses as to the applicant's activities prior to February 1985. This contention may also be shortly dealt with. In my view the Tribunal did not act on this evidence. It was perhaps because of the unsatisfactory nature of Ms Hawkins' evidence in particular that in para.15 of its reasons the Tribunal expressly declined to make a finding "as to the merits of the two protagonists or of the versions of different events as presented by the applicant and by other officers of the Department".
The remaining ground of appeal alleges error of law in the formulation by the Tribunal of the issues which it was required to decide. Earlier in this judgment I referred to the statement by the Tribunal of the "central issue" in para.4 of the reasons. Counsel for the applicant criticised this statement on the ground that it focussed on incapacity, and did not pose the question of causation in a way that mirrored the requirements of ss.27 and 29 of the Act. The statement is not couched in the technical language of ss.27 and 29, but it does clearly identify causation as the central issue. The statement must be read in context and against the background of the evidence before the Tribunal. It was common ground among the medical witnesses, and between the parties, that the applicant, during the period in respect of which he claimed compensation, suffered a psychological condition. The fact of incapacity resulting from that condition was generally assumed. The dispute was as to the nature of the condition and whether it had any causal relationship with his employment. The statement of the central issue by the Tribunal recognises that the condition could be compensable if it were "induced" by the employment, that is caused by the employment. If it were, then, depending on whether the condition was to be characterised as personal injury or as a disease, it would be compensable either under s.27 or s.29. The statement also recognises that even if the condition were "an inherent condition", that is an endogenous disease, compensation could be payable if the employment contributed to an aggravation, acceleration or recurrence of that condition. The Tribunal's reference to "injury" in the concluding sentence of para.4 reflects the provisions of sub.s.29(2) which deem a compensable disease to be personal injury to the employee arising out of his employment. In my opinion when the reasons of the Tribunal are read as a whole, they do not support the argument that the Tribunal misapprehended the relevant tests of causation imposed by ss.27 and 29 of the Act.
In my opinion each of the grounds of appeal fail and the appeal should be dismissed.
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