William Red and Comcare - [2013] AATA 123

[2013] AATA 123

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0068

Re

William Red

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Senior Member A K Britton
Dr Isles, Member

Date 8 March 2013

Place Sydney
Decision Summary
The reviewable decision made on 6 May 2011 is affirmed.
.................[SGD]......................................................
Senior Member A K Britton
Catchwords
WORKER’S COMPENSATION –Tinnitus — Causation — Whether tinnitus arose out of, or in the course of, employment — Anxiety disorder — Whether a result of reasonable administrative action — Whether reasonable administrative action was executed in a reasonable manner
PRACTICE AND PROCEEDURE — Expert witnesses — Opinion evidence
Practice and Procedure — Contempt of the Tribunal
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c)
Evidence Act 1996 (Cth) – s 76, 79
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 5A, 5B, 4(4), 14
Cases
Attorney General v Leveller Magazine Ltd [1979] AC 440
Comcare v Sahu-Khan 156 FCR 536
Commonwealth Bank of Australia v Reeve and Anor 125 ALD 181
Drenth v Comcare (2012) 128 ALD 1
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Keen v Workers Rehabilitation & Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42
National Australia Bank Limited v KRDV [2012] FCA 543
Sendy v Commonwealth [2002] NSWSC 1109
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
Secondary Materials
AAT Guidelines for Persons Giving Expert and Opinion Evidence, November 2011
Legal Service Directions 2005 Appendix B s 2(e)(ii)
REASONS FOR DECISION
Senior Member A K Britton
Dr Isles, Member
8 March 2013

Mr William Red was employed as a contract and procurement officer with the Department of Defence (the Department) between January 2007 and April 2011. He claims that as a result of that employment he developed an anxiety disorder and tinnitus. He seeks review of Comcare’s decision to refuse liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for both conditions.
There is no argument that Mr Red suffers from an anxiety disorder and that this was contributed to, to a significant degree, by his employment with the Department. It is also agreed that he suffers from tinnitus. The principal issues in dispute are whether, as Comcare contends, Mr Red’s anxiety disorder was a result of “reasonable administrative action” and in respect of his tinnitus, whether it was contributed to a significant degree by Mr Red’s employment with the Department, or arose out of, or in the course of, that employment.
LEGISLATIVE SCHEME
Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Mr Red if it results in impairment or incapacity for work (s 14 of the Act).
The Act defines “injury” to mean (s 5A(1)):
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
“Disease” is defined to mean: (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 (s 5B(1)). “Ailment” in turn is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). “Significant degree” means “a degree that is substantially more than material” (s 5B(3)).
Is Comcare liable for Mr Red’s tinnitus?
Comcare will be liable under the Act for Mr Red’s tinnitus if it, or its aggravation, “arose out of, or in the course of” his employment with the Commonwealth between 2007 and 2011, or, was “contributed to, to a significant degree”, by that employment (ss 5A, 5B and 14 of the Act).
Mr Red claims that his tinnitus was caused by the noise generated by co-worker, Mrs Catherine Allcroft. He contends that the noise generated by Mrs Allcroft caused him to develop tinnitus, by subjecting him to:
·acoustic trauma;
·acoustic shock;
·anxiety.
Comcare agrees that tinnitus can be caused by acoustic trauma and acoustic shock but contends that Mr Red was not exposed to either during his employment with the Department. It disputes the proposition that tinnitus can be caused by anxiety and contends that consistent with the opinion of Ear, Nose and Throat (ENT) surgeon, Dr Andrew Wills, the most likely cause of Mr Red’s tinnitus was prolonged noise exposure prior to commencing employment with the Department in 2007.
What is tinnitus?
Commonly described as “ringing in the ears”, severe tinnitus can disrupt sleep, reduce concentration, make the sufferer extremely irritable and lead to depression (Managing Noise and Preventing Hearing Loss at Work: Code of Practice published by Safe Work Australia, December 2011, p 6 (the Code)).
Dr Wills described tinnitus to mean:
[A] subjective experience of noise without any external stimulus to account for its presence. It is commonly a high frequency pitch which is often constant in nature. There are no diagnostic criteria since the diagnosis is based almost exclusively on the history of a sensation of noise in a quiet environment.
There is no known test to verify that a person suffers from tinnitus. Nor is there is any known cure, although measures such as masking, cognitive behavioural therapy and hypnotherapy are understood to provide a measure of relief to some sufferers.
Before dealing with the arguments about the cause of Mr Red’s tinnitus it is necessary to address objections raised by the parties about evidence given by the experts.
Was Dr Wills biased against Mr Red?
Mr Red contends that Dr Wills was biased against him and acted unethically and therefore his evidence should be given no weight. Mr Red argues that Dr Wills’ bias was evidenced by his refusal to accept the opinions Mr Red relied on to support his case. In addition he asserts that it was unethical for Dr Wills to have failed to disclose that he was “certified by Defence”. He also contends that Comcare acted improperly in claiming Dr Wills, his treating specialist, as “their witness”.
Mr Red’s argument that Dr Wills was biased against him, without more, cannot be accepted. Mere disagreement does not evidence bias. The real question here is whether Dr Wills’ disagreement with those opinions was not substantially based on his training, study and experience but instead was irrational or based on, or gave undue weight to, irrelevant considerations disadvantageous to Mr Red. We saw no objective evidence of such irrationality or inappropriateness of approach by Dr Wills.
In addition Mr Red asserts that it was unethical for Dr Wills to have failed to disclose that he was “certified by Defence”. The Department apparently refers veterans and civilian staff to Dr Wills for treatment and assessment. Mr Red was referred to Dr Wills for assessment by his own GP. Dr Wills was not required as we understand Mr Red to assert to disclose that relationship. It is to be noted that Mr Red saw Dr Wills 12 months before he made a claim for compensation and outside a litigation environment. We do not doubt that Mr Red’s perception is an honest one but, in our view, there is little objective significance and no substantial adverse consequence for Mr Red.
Mr Red also contends that Comcare acted improperly for claiming Dr Wills, his treating specialist, as “their witness”. Again, in our view, Mr Red, while making an honestly held submission, overstates the significance of the form of words used by Comcare. They merely signify that Comcare have obtained a report from Dr Wills and have presented his evidence to the Tribunal. This is common parlance in litigation. It is not a concession or subconscious indication by Comcare that Dr Wills is giving evidence biased in its favour. In circumstances such as this, there is no impropriety in a party referring to such an expert as its witness. The important issue is whether the opinion evidence is impartial and based on the expert’s training, study and experience.
Mr Red’s suggestion that Dr Wills acted unethically in giving evidence “for Comcare” is misconceived. As an expert witness Dr Wills’ overriding duty was to provide impartial assistance to the AAT. His role was not to act as an advocate for either party (AAT Guidelines for Persons Giving Expert and Opinion Evidence, November 2011). It was not improper for Comcare to obtain a report from Dr Wills notwithstanding that he was also Mr Red’s treating specialist: there is no property in an expert (Sendy v Commonwealth of Australia [2002] NSWSC 1109). It was open to Mr Red to call Dr Wills to give evidence.
Is Dr Dawes qualified to express an opinion about the causes of tinnitus?
Comcare contends that Mr Red’s treating psychologist, Dr Keith Dawes, is not qualified to offer an opinion about the cause tinnitus.
Under the “opinion rule” evidence of an opinion is generally inadmissible to prove the truth of the subject matter of that opinion (s 76 of the Evidence Act 1996 (Cth) (the Evidence Act)). That rule does not apply where the person expressing the opinion has specialised knowledge based on their training, study or experience, and their opinion is wholly or substantially based on that knowledge (s 79 of the Evidence Act). While the AAT is not “bound by the rules of evidence” and may “inform itself on any matter in such manner as it thinks appropriate”(s 33(1)(c) of the Administrative Appeals TribunalAct1975 (Cth)), the practice of the AAT is to apply those provisions of the Evidence Act and the principles developed by the common law, governing expert evidence.
The issue is not whether Dr Dawes, who holds a PhD in the field of organisational psychology, is highly educated, intelligent or experienced in the field of psychology, but whether he possesses specialised knowledge based on his training, study or experience about a fact in issue, namely the aetiology of tinnitus. While Dr Dawes may have some experience in the treatment of tinnitus — he has treated approximately ten sufferers over 40 years — he is neither experienced in, nor has trained in or studied the causes of the condition. As Comcare points out Dr Dawes holds no medical qualifications and his principal area of expertise is organisational psychology and career counselling. Reviewing the research gathered by Mr Red for these proceedings does not constitute specialised knowledge.
In our opinion Dr Dawes is not qualified to express an opinion about the cause of tinnitus.
Was Mr Red exposed to acoustic trauma at work?
The parties agree that both hearing loss and tinnitus can be caused by chronic and/or acute acoustic trauma. Acute acoustic trauma is typically caused by very loud impact or explosive sounds, while chronic acoustic trauma is caused by prolonged noise exposure of a lesser intensity (the Code, p 6). Mr Red contends that he suffered both chronic and acute acoustic trauma as a result of the noise generated by Mrs Allcroft and this was a cause of his tinnitus. Comcare disagrees.
Much of the evidence about acoustic trauma is not in dispute. The parties agree that the Code is an authoritative document. Mr Red agrees with the measure and level this document adopts for sound exposure assumed to place an employee at risk of hearing loss (or tinnitus) — 85 dB averaged over an 8 hour day (based on a 40 hour week) — but asserts that noise levels below this may also put an employee at risk. He asserts this is especially where, as in his case, an employee’s work demands deep concentration.
The Code explains that whether the 85 dB standard (the exposure standard) has been exceeded is determined by the level of the sound and the duration of the exposure. The higher a sound level, the shorter the allowable period of exposure.
The following table is taken from the Code (at p 10) and sets out estimates of sound levels generated by common noise sources:
Also taken from the Code (at p 7), the following estimates the amount of time a person without hearing protection can be exposed to various sound levels before the exposure standard is exceeded:
Mr Red’s exposure to noise throughout the relevant period
Mr Red contends that throughout the relevant period he was exposed to acoustic trauma by Mrs Allcroft’s voice.
Between early 2007 and January 2010, Mr Red worked in a ground floor office in a heritage-listed building at Garden Island, Sydney. The building had high ceilings and poor acoustics. Mr Red worked in a section of the building shared with five other employees. All but Mrs Allcroft worked in partitioned offices. Mrs Allcroft, an administrative assistant, worked at a desk in a large open area of the office. A diagram of the office is set out below.
According to Mr Red, not only was Mrs Allcroft “very loud”, she often screamed and sometimes “shrieked, cackled and chortled” especially when she was on the phone or others congregated around her desk. He claimed that these outbursts were regular daily occurrences. Mr Red testified that Mrs Allcroft would regularly call out from her desk to colleague, Mr Craig O’Connor, whose office was about five metres away. On his account closing the door to his office gave little relief as its walls did not reach the ceiling. He found the noise disrupted his concentration while working.
Mr Red’s manager, Mr John Whitelaw, agreed that Mrs Allcroft could be loud and had a “powerful” voice. He testified that once every few days he could hear Mrs Allcroft’s voice from his office across a passageway and about 15 metres from her desk. He supported Mr Red’s claim that Mrs Allcroft had regular visitors who would remain standing and talk around her desk but did not recall these conversations being very long. In the course of her duties Mrs Allcroft answered phones and had numerous conversations with visitors to the office, Mr O'Connor and others. While these conversations were mainly work related there were some social interactions as well. Apart from an incident in 2002 when Mrs Allcroft was asked to lower her voice by another colleague, Mr Whitelaw said he was unaware of any complaint being made about Mrs Allcroft.
While there was a range of opinion amongst Mr Red’s colleagues about the volume and characterisation of Mrs Allcroft’s voice, the weight of evidence indicates that she could be loud and, from time to time, very loud. We also think it likely that Mrs Allcroft was especially noisy when speaking on the phone or in a group. While difficult to estimate the frequency of those outbursts Mr Red found to be especially distressing we accept that they were a regular daily occurrence.
Estimates of noise levels
As confirmed by testing conducted by OH&S Officer Mr Ian Beard in May 2009, there was no significant background noise in the office where Mr Red worked throughout the relevant period. Mr Beard found the levels to be within those expected of a quiet office environment. (Those tests were conducted in the absence of Mrs Allcroft and other members of staff.) No testing has been conducted to estimate the actual noise levels generated by Mrs Allcroft.
Mr Red contends that he was routinely exposed to noise levels above 85 dB on account of Mrs Allcroft’s voice. In his opinion her voice levels were certainly above loud conversation (70 dB) and at times would reach 100 dB which he believes is equivalent to the noise levels in a night club. Mr Beard is of the opinion that measured at its source, a loud laugh could reach 105 dB and a loud scream could even reach 120 dB.
Mr Beard pointed out other factors including reverberation and absorption can determine the level of sound “received”. He thought that these and other factors might explain his findings on testing that general background sound levels were 2 dB higher in Mr Red's office as compared to adjacent offices.
Mr Beard also pointed out that the Exposure Standard needs to be understood in the context of a person’s total exposure to noise. On his account a person who in any one day had already been exposed to significant noise might be at risk even if at work noise levels did not exceed the Exposure Standard.
Dr Wills thought it improbable that Mr Red would have been exposed to noise that exceeded the Exposure Standard. He pointed out that Mr Red was located about eight metres from Mrs Allcroft, and that her voice would dissipate over that distance. He pointed out that Safe Work Australia’s estimates (see above) were based on measurement taken at the source of noise. He referred to the example provided by the Code (at p 16) that illustrates that if, at its source the sound measured 90 dB, at two metres it would have reduced to 84 dB. Each doubling of that distance would reduce the sound level by a further 6 dB so that at four metres from the source, the sound would have reduced by 12 dB to 78 dB.
Was the 85 dB standard exceeded?
While we accept that Mrs Allcroft was loud and on occasion very loud, so much so as to cause a significant disturbance to Mr Red, consistent with the opinions of Mr Beard and Dr Wills, we think it improbable that the noise she generated could have been of such a level and duration as to expose Mr Red to noise exceeding the Exposure Standard. We think it improbable that Mr Red was exposed to noise levels of 100 dB or higher, given that first, he was some distance from Mrs Allcroft (by the time her voice reached him, it would have dissipated considerably); and second, that estimate is incongruous with the estimates provided by Safe Work Australia (see par [25]) which estimate 100 dB to be the typical level of sound generated by a sheet–metal workshop. Had, as Mr Red contends, Mrs Allcroft’s outbursts been so loud they must have been very short-lived, as it is inconceivable that any prolonged sound of this type would have been tolerated or gone unnoticed by others in the office.
We think it improbable that the noise levels to which Mr Red was exposed at work were of sufficient level or duration to cause him to suffer acute or chronic acoustic trauma.
Did Mr Red suffer an acoustic shock?
Mr Red contends that he was subjected to repeated “acoustic shock” injuries and that this was a cause of his tinnitus. On his account the sudden and unexpected nature of the loud noises emanating from Mrs Allcroft in a quiet office when he was deep in concentration (described as a “startle effect”), were “acoustic shocks” and caused him stress and to be constantly in a state of apprehension and thus led to tinnitus. Dr Wills is of the opinion that acoustic shock injuries generally only arise in a call centre environment. Mr Red contends, relying on among other things the opinions expressed by Ms Marion Burgess, a research officer with the Acoustics and Vibration Unit at the University of NSW, and Mr Warwick Williams, senior research engineer at the National Acoustic Laboratory, in Non-noise contributors to occupational hearing loss in (2006) 24(3) Acoustics Australia that acoustic shock can occur outside call centre environments. Ms Burgess and Mr Williams wrote:
While it has been accepted for some time that noise can increase stress (WHO 1980) at this time there is no clear evidence that workplace stress will increase the risk of hearing loss. However there is a strong indication that workplace stress can have an effect on the incidence of tinnitus and of the reaction referred to as Acoustic Shock (Patuzzi & Thomson: 1996; WHSQ: 2003).
Dillon and Fisher (2002) described the understanding of the mechanism of acoustic shock as the result of an ‘acoustic startle’ from an unexpected noise that may not be particularly loud. Acoustic shock is described in AS/NZS1269.0:2005 as:
Acoustic shock is a term used to describe the physiological and psychological symptoms a person may experience after having sudden, unexpected loud sound, usually via a telephone headset or handset and usually does not result in hearing loss [emphasis added]
In practice, an acoustic incident typically acts as a trigger after the culmination of various workplace stressors. Call centres are one such type of workplace where there may be challenging performance pressures, unrealistic performance targets, anxiety, poor working conditions, irate clients and general stress. The combination of a poor psychological workplace plus background noise can indirectly influence the likelihood of acoustic shock (Patuzzi & Thomson: 1996; WHSQ: 2003).

The Code states (at Appendix A, page 30):
Although acoustic incidents occur in workplace (mainly call centres), only a very small proportion cause the symptoms known as ‘acoustic shock’ in workers [emphasis added].
High background noise levels at the workplace can increase the risk of acoustic shock occurring from an acoustic incident. For example, operators may raise the volume in their headsets to improve hearing thereby increasing the impact of any sudden, loud telephone noise. When an acoustic incident occurs, the operator’s automatic reaction may be to remove the headset or receiver as quickly as possible and, in some cases, this may help prevent or reduce the effects of acoustic shock.
Other factors, such as a middle ear inflammation and feelings of tension, may increase the likelihood of an acoustic shock resulting from an acoustic incident.
Dr Wills asserted that the opinion that acoustic shock was a possible cause of tinnitus was “controversial” and enjoyed little support in peer-reviewed literature. He explained that it was thought to be largely a call centre phenomena because of the potential for operators to receive very loud noises unexpectedly, directly to their ear, and because they were often unable to take their headsets off in time to avoid damage to their ears. He explained that because the sound pressure was directly applied without dissipation to the operator’s ear canal the sound the received by the operator could be “very intense”.
Mr Red pointed out that the references appearing in the literature to acoustic shock occurring in a call centre environment was generally qualified by use of the word "usually" and contends that this indicates that it could be caused by noise from other sources. Dr Wills rejected this stating:
All that I can say is that the literature I've reviewed, and I've given obviously your case a lot of thought since our initial contact in 2009, everything I've read and discussed and reviewed since then talks about acoustic shock in the context of a call centre.
Dr Wills also rejected a number of Mr Red's interpretations of information provided in the literature as supporting the belief that acoustic shock can occur in other situations. Dr Wills, commenting on articles sent to him by Mr Red (but not provided as evidence) and which Mr Red believed supported his contention that acoustic shock could be caused by sound levels as low as 60 dB, rejected this proposition. He pointed out that the study referred to a call centre and that 60 dB through a headset is very different to 60 dB in the “free environment”.
Dr Dawes agreed with the proposition advanced by Mr Red that reception of sound via a telephone was not the only possible cause of acoustic shock. In his opinion acoustic shock can be experienced by highly emotional people who either experience and/or anticipate a discomfort — an acoustic discomfort. According to Dr Dawes the acoustic discomfort (or its anticipation) “shocks them … it sends their sympathetic nervous system spiralling upwards”. When questioned about the basis for that opinion, Dr Dawes stated that it was based on his observations and had neither been tested nor subjected to peer review. Dr Dawes described himself as an “inter-subjective thinker” using a sociological process and did not accept the proposition that rigorous scientific testing was necessary to confirm anecdotal observations, describing that as an “old idea”.
We are unable to accept Dr Dawes’s opinion that exposure to sudden and unexpected sound could either be described as acoustic shock (as that term is currently understood) or cause tinnitus. Not only is Dr Dawes not qualified to express an opinion, his opinion is neither supported by the literature nor independently validated. While we accept as pointed out by Mr Red that neither the literature nor the Code could be read as ruling out the possibility that acoustic shock could be suffered outside a call centre environment, we are persuaded by Dr Wills’ opinion that where, as in Mr Red’s workplace, noise levels are relatively low and the noise is not transmitted through headsets, it is improbable that a person would experience an acoustic shock.
Did anxiety contribute to Mr Red’s tinnitus?
It is agreed that anxiety can heighten a person’s perception, or symptoms of, tinnitus and that tinnitus can, in turn, cause anxiety. The issue in dispute is whether as Mr Red believes anxiety can cause or aggravate tinnitus.
We accept that Mr Red suffered from anxiety, which was caused in part by the noise generated by Mrs Allcroft.
Describing tinnitus as a “rather nebulous” concept, Dr Wills explained that it is unknown exactly where it occurs in the auditory pathway. He explained that the consensus of current medical opinion is that like hearing loss, tinnitus is caused by physical damage to the fine hair cells in the auditory canals that then:
start vibrating and wobbling ever so slightly and when that occurs they generate an electrical impulse which is independent of any noise coming through the ear; in other words, there’s an electrical impulse being generated by those hair cells in the absence of noise and that’s what we think tinnitus actually is. It’s actually a noise produced in the ear by the ear to the exclusion of any other external stimulus.
Dr Wills accepts that anxiety probably heightened Mr Red’s perception of tinnitus but doubts that it caused or aggravated the condition.
Mr Red relies on a number of publications to support his contention that anxiety was a contributing factor to the development, or aggravation of, his tinnitus. The first, “Questions about tinnitus” was written by Jonathan Hazell FRCS, presumably a specialist in the area (Applicant’s Documents, Vol. 1 p 93). (This publication appears to be a web site for sufferers of tinnitus and is apparently not a peer reviewed paper.) Dr Hazell states that persistent tinnitus is often triggered, or made worse, by emotional events.
The second is taken from a Department of Defence internal web site titled “Air Force – Air Force Safety – Hearing Tests” which states:
What causes tinnitus?
Exposure to loud noises, dental and jaw problems, middle-ear infections, some medications, stress and fatigue or even wax on the eardrum, can cause tinnitus.
The third, an article by Myriam Westcott (‘Acoustic Shock Injury (ACI)’ (2006) 126 Acta Oto-Laryngologica 54) states:
In my experience as an audiologist specialising in tinnitus and hyperacusis therapy [spontaneous and excessive middle ear muscle contraction], symptoms most frequently appear in clients whose anxiety appears to be focused on a need to protect their ears from sounds that could cause an escalation in their tinnitus…
In the fourth, Ms Burgess and Mr Williams (‘Non-noise contributors to occupational hearing loss’ cited above) state:
While it has been accepted for some time that noise can increase stress (WHO 1980) at this time there is no clear evidence that workplace stress will increase the risk of hearing loss. However there is a strong indication that workplace stress can have an effect on the incidence of tinnitus and of the reaction referred to as Acoustic Shock (Patuzzi & Thomson: 1996; WHSQ: 2003).
On questioning, Dr Wills said he was unaware of any authoritative research or study that showed tinnitus being caused solely by anxiety.
Dr Dawes is also of the opinion that stress may affect the incidence of tinnitus. He explained that a highly emotional person with an accentuated sympathetic nervous system, like Mr Red, reacts readily to external stressors such as noise.
As acknowledged by Dr Wills, tinnitus is a complex condition and its exact aetiology is unknown. Given this imperfect state of knowledge the possibility that Mr Red’s tinnitus was caused or aggravated in some way by anxiety, cannot be definitely excluded. Dr Wills has provided a reasoned explanation for his opinion that anxiety was not a causative factor. While possible that anxiety contributed to the development, or aggravation of, Mr Red’s tinnitus, on balance we could not be satisfied that it did.
Did Mr Red suffer an injury?
Whether Comcare is liable for Mr Red’s tinnitus condition turns on whether he suffered an “injury” within the meaning of the Act. The Act contains a number of definitions of “injury” including (i) a disease suffered by an employee; (ii) an injury (other than a disease) suffered by an employee, arising out of, or in the course of the employee’s employment; (iii) an aggravation of disease; and (iv) an aggravation of an injury. We will consider whether Mr Red’s tinnitus constitutes an injury for the purpose of each of these definitions.
Does Mr Red’s tinnitus constitute a disease?
Mr Red’s tinnitus will constitute a disease if it, or its aggravation (if any) was contributed, to a “significant degree”, by his employment with the Department. In making that assessment we must identify all contributory factors — employment and non-employment related — and then evaluate whether Mr Red’s employment with the Department did or did not contribute to his tinnitus, to a degree substantially more than material (Comcare v Sahu-Khan 156 FCR 536 at 542, 543, per Finn J, commenting on an earlier version of the definition of disease contained in the Act). In undertaking that task we must take into account the non-exhaustive list of factors at s 5B(2).
Duration of the employment (s 5B(2)(a)): Mr Red was employed in the Department between January 2007 and April 2011 and worked in the same area as Mrs Allcroft until January 2010.
Nature of, and particular tasks involved in, the employment (s 5B(2)(b)): Mr Red’s work included reviewing and assessing contracts and proposed commercial arrangements. He claims, and we accept, that much of that work demanded “deep concentration”.
Any predisposition of Mr Red to tinnitus (s 5B(2)(c)): As stated Dr Wills is of the opinion that the most probable cause of Mr Red’s tinnitus was chronic acoustic trauma that predated his employment with the Department. He explained that tinnitus is often but not always associated with hearing loss, pointing out that each are believed to be the result of damage to the fine hair cells in the auditory canal.
While Dr Wills agreed that any loud noise exposure can damage the inner ear especially where there is a history of long term noise exposure, he thought it unlikely that the noise in Mr Red’s work environment would have been of a sufficient level and/or duration to have caused tinnitus. He thought it more plausible that Mr Red’s tinnitus was secondary to his hearing loss, which he believed was probably caused by his employment with the Department prior to 2007. He pointed out that the results on testing conducted in January 2009 revealed mild high frequency hearing loss in both of Mr Red’s ears. He asserted that hearing loss in those frequencies was common for a person with a long history of working in a construction industry environment. In his opinion, the bilateral nature of Mr Red’s hearing loss was consistent with chronic as opposed to acute noise exposure, explaining that damage caused by a single acute event typically only resulted in hearing loss in one ear.
Dr Wills did not resile from this opinion when taken to evidence which revealed that Mr Red had not worked exclusively in, or in the most noisy parts of, the construction industry in the two decades prior to moving to white collar work in 2002 and, furthermore, throughout some of that period wore hearing protection. According to Dr Wills work of the type described by Mr Red was sufficient to have caused chronic acoustic trauma over the years.
According to Dr Wills, Mr Red’s history of hearing loss made him susceptible to the accumulative effect of ongoing loud noise exposure leaving open the “albeit unlikely possibility that a short loud scream may cause damage to his inner ear”.
Any activities of Mr Red not related to the employment (s 5B(2)(d)): None appear to be relevant.
Any other matters affecting Mr Red’s health (s 5B(2)(e): Mr Red suffers from diabetes. While there is some evidence to suggest that diabetes may contribute to hearing loss or tinnitus, the available evidence does not support a finding that it did in Mr Red’s case.
Conclusion
Given that tinnitus is a poorly understood condition it is possible, as Mr Red believes, that in his case, anxiety and/or the noise generated by Mrs Allcroft, contributed in some way to its development. Having carefully considered the various hypotheses put by Mr Red and the voluminous material relied on in support, we are of the opinion that the most probable explanation for the development of Mr Red’s tinnitus was that given by Dr Wills: damage to the fine hairs in the inner ear.
In reaching that conclusion we have accepted Mr Red’s claim that in the two decades to 2002, he did not work exclusively in, or, in especially noisy parts of, the construction industry. Nonetheless it is uncontroversial that by early 2009 he was suffering from hearing loss in both ears consistent with exposure to long term acoustic trauma. We accept Dr Wills’ opinion that Mr Red’s tinnitus and hearing loss are likely to have been caused by the same mechanism: damage to the fine hairs in the inner ear. We also accept that the most probable cause of that damage was long term noise exposure. We agree with Dr Wills that the workplace noise to which Mr Red was exposed in the two years to January 2009 was unlikely to have caused that damage, and it was probably caused by Mr Red’s exposure to workplace noise prior to joining the Department.
Applying that analysis and having regard to the matters listed by s 5B(2) and discussed above, we cannot be satisfied that Mr Red’s tinnitus was contributed to, to a significant degree, by his employment with the Department. The evidence in our opinion does not support a finding that Mr Red suffered an aggravation of tinnitus and therefore it is unnecessary to consider the issue of causation.
Did Mr Red’s tinnitus arise out of, or in the course of, his employment?
For the reasons given we are not satisfied that Mr Red’s tinnitus “arose out of” of his employment because the necessary causal connection between employment and the injury is not established. It is therefore necessary to consider whether it arose in the course of that employment, that is, whether there is a temporal link between the injury and Mr Red’s employment: Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310.
In a statement dated 22 November 2010 Mr Red gave this account of the onset of his symptoms of tinnitus:
In about April/May 2008 whilst in deep concentration during one of Ms Catherine Allcroft’s shrieks, I heard a noise like paper tearing. Later that day the paper tearing noise became louder. I now understand that this was tinnitus.
He claims that this was the first time he had experienced symptoms of this type.
While we accept that Mr Red now holds the honest belief that this incident occurred in the manner described, for the reasons that follow we are not satisfied on the balance of probabilities that it did.
In a letter addressed to Comcare dated 3 November 2010, Dr Nakhle stated that Mr Red “presented to me in mid-2008 re his tinnitus in his ears”. In contrast, the first entry in Dr Nakhle’s notes of Mr Red making a report of tinnitus type symptoms appears on 14 December 2008. In oral evidence Dr Nakhle said that he could not explain why he referred to mid-2009 in his report despite the absence of any reference in his clinical notes and thought it was probably an error. He conceded it was possible that Mr Red had complained of these symptoms prior to December 2008 but he had failed to make a record in his clinical notes. He also conceded that it was possible that the reason he cleaned Mr Red’s ears in June 2008 was because he had complained of tinnitus type symptoms.
It seems to us improbable that had Mr Red reported the incident as described in his statement, Dr Nakhle would have both failed to record it and failed to refer him for investigations for over six months. As his testimony made clear Dr Nakhle was aware that a report of “ringing in the ears” could be suggestive of something more sinister such as a brain tumour and necessitated a referral. Given this we think that Dr Nakhle’s notes are more to be a reliable indicator of when Mr Red first reported tinnitus type symptoms.
We also think it improbable that Mr Red would have failed to report such a dramatic event to his managers. He was not only interested in, but knowledgeable about, OH&S issues. His explanation for failing to do so, namely his inability to locate the incident book, we find to be unconvincing. While there is evidence that by mid-2008 Mr Red was concerned that he might be suffering from tinnitus (see email from Mr Red to himself, 18 July 2008) there is no contemporaneous evidence to support his account of the experience of onset of symptoms.
According to Dr Wills the onset of tinnitus is usually gradual and often not recognised, or reported by the sufferer, for some time. He stated that he had never heard a description of onset as that given by Mr Red — “a noise like paper tearing” and claimed it was usually described as “a cicada, a hissing, escaping gas or static on the radio”.
Dr Wills thought the onset of Mr Red’s tinnitus was likely to have been gradual because, like his hearing loss, it was most probably caused by the cumulative effect of chronic noise exposure. According to Dr Wills, the immediate onset of tinnitus symptoms can occur but only where the sufferer experiences an acute acoustic trauma. Dr Wills said he had only heard of this occurring in the context of a significant explosion or gunfire. Dr Wills conceded it was theoretically possible but unlikely that tinnitus could be caused by a loud scream.
We could not be satisfied on balance that onset occurred in the manner described in Mr Red’s statement. On the available evidence it is not possible to identify with precision when Mr Red first experienced tinnitus type symptoms although we accept that by mid-2008 he was probably experiencing some symptoms. On balance we could not be satisfied that the onset of Mr Red’s tinnitus was either spontaneous or happened at work.
For these reasons we are not satisfied that the condition arose in the course of Mr Red’s employment.
Summary
Mr Red did not suffer an injury within the meaning of the Act and therefore the decision made by Comcare to refuse to accept liability for Mr Red’s tinnitus, is affirmed.
Is Comcare liable for Mr Red’s anxiety disorder?
It is necessary to decide a preliminary issue, that is, when for the purposes of the Act, Mr Red is taken to have sustained “an injury” in the form of a disease, namely an anxiety disorder.
Diagnosis and treatment of Mr Red’s anxiety disorder
On 27 May 2009, Mr Red was referred by Dr Nakhle to Dr Dawes, for management of his anxiety condition. The first mention in Dr Nakhle’s clinical notes of Mr Red reporting symptoms of anxiety is the entry for 11 March 2009, which records Mr Red saying he was feeling anxious at work because of “the yelling of a female colleague”.
On 29 May 2009 Mr Red commenced treatment with Dr Dawes under a mental health plan, initially for 10 sessions. He remains under Dr Dawes’ care. Mr Red had met Dr Dawes some years earlier while working for a legal practice that referred clients to Dr Dawes for psychological assessment. In 2003, Mr Red, who had just completed a law degree, sought career guidance from Dr Dawes, in his role as an organisational psychologist.
In a report prepared at the request of Comcare, dated 5 November 2010, in answer to the request, “Please provide the patient’s history as reported by Mr Red during each consultation, including the date of when he first consulted you/the surgery for his claimed condition”, Dr Dawes wrote:
Mr Red had been speaking with me informally on the problems he was encountering in his workplace. We had quite a few telephone discussions. I advised him to seek a Medicare GP Mental Health Care Plan so that we could discuss these issues formally.
Mr Red was referred to me again by Dr Nakhle on 27 May 2009, this time under a Medicare GP Mental Health Care Plan. Dr Nakhle referred Mr Red again on 13 June 2010.
Mr Red first consulted me on issues to do with this claim on 29 May 2009. He has consulted me on the following dates under Medicare:
2, 25 July, 22 August, 26 September, 14 November, 9, 16, 19, 30 [December] 2009.
16 January, 21 April, 8, 29 May, 12, 17, 28 June, 4, 22, 25, 31 July, 12, 22, 26 August, 2, 9, 16, 21, 24 September, 7 October, 4 November 2010. There have been several unbilled sessions in October and November.

In that report under the heading “Details of any relevant history, pre-existing condition suffered by Mr Red”, Dr Dawes wrote:
I have known and treated Mr Red since 2003. He has demonstrated anxiety and low mood before but not under the circumstances that exist for him now. He has never discussed having tinnitus before.
In a statement prepared in support of his claim dated 22 November 2010, Mr Red stated that while on annual leave in August 2008 he had “informally consulted Dr Dawes about his circumstances”. In oral evidence he stated that between 2007 and mid-2009 he spoke to Dr Dawes on a number of occasions about his problems at work. Mr Red also stated that in the second half of 2007, he was becoming increasingly anxious about his tinnitus and Dr Dawes treated him using hypnotherapy in his rooms on his farm in Lakesland, NSW. Dr Dawes on the other hand recalled not having a great deal of contact with Mr Red between 2003 and mid-2009.
Dr Dawes claimed that many of his long-term clients contacted him from time to time to report on their progress, and, from time to time, he initiated inquiries about their progress. He testified that he neither charged for, nor kept records of, these discussions, even when treatment or advice was given. He claimed however that it was his practice to make a record whenever he saw a patient in his rooms.
When questioned about when Mr Red started to speak to him on an informal basis about his problems in the workplace, Dr Dawes stated it was probably late 2008. When asked whether he considered those conversations to be “clinical treatment” Dr Dawes replied that he had “always been Mr Red’s psychologist” and when it became apparent that his workplace problems were getting “more heated” he had suggested that their discussions be put “on a more formal basis”.
According to Dr Dawes when he saw Mr Red in May 2009 (on referral from his GP), Mr Red was still able to function at work and maintain social relationships, but was suffering from “a state of heightened anxiety”. In his opinion Mr Red had probably not been in this state for very long before treatment was commenced in May 2009.
In his statement dated 22 November 2010 Mr Red wrote that on about 30 May 2009 he was “becoming aware that I was not quite rightly [sic] and I need counselling. I believe that I had not been quite right for a long period of time. Ms Catherine Allcroft’s noise had caused me to feel awful”. In a claim lodged with Comcare in September 2010, in answer to the question “When were you first injured or when did you first notice you were ill?” Mr Red wrote, “on or about April 2009”.
What is the deemed date of injury?
Mr Red will be taken to have sustained an anxiety disorder, on the day he first sought medical treatment for that condition, or, the date it first resulted in impairment/incapacity for work, whichever happened first (s 7(4) of the Act). It is agreed that Mr Red sought treatment for his anxiety disorder prior to becoming incapacitated for work or his condition resulted in impairment. Comcare contends that the date of injury is 29 May 2009, the date Mr Red commenced treatment with Dr Dawes. Mr Red on the other hand contends that the date of injury is late 2007 when he first sought treatment from Dr Dawes albeit on an informal basis.
The task of determining when Mr Red first sought medical treatment for his anxiety disorder is made difficult because of the lack of contemporaneous records, the nature of his relationship with Dr Dawes and their conflicting recollections about the contents of their discussions prior to the commencement of formal counselling in May 2009.
While Dr Dawes insisted that he saw himself at all times as “Mr Red’s psychologist” it is apparent that the lines between friendship and a treater/patient relationship had become blurred. The assistance Mr Red provided to Dr Dawes following the bushfire on his property is but one of a number of examples of the relationship having a dimension other than a practitioner/patient relationship.
Mr Red contends that the reason Dr Dawes cannot recall treating him with hypnotherapy in 2007, or their discussions about his problems at work prior to late 2008, or, is because of the many demands on Dr Dawes’ time and his practice of not making clinical notes when providing treatment on an informal basis. While possible we note that Mr Red’s detailed statement contains no mention of hypnotherapy treatment in 2007, or discussing his problems with Dr Dawes (prior to August 2008). We also note that Dr Dawes’ recollection of first observing Mr Red’s “state of heightened anxiety” shortly before formal treatment commenced in May 2009, is consistent with Mr Red’s recollection of when his symptoms first arose as recorded in the compensation claim form.
On balance Mr Red probably first sought medical treatment for his anxiety condition on 11 March 2009 when he first raised his concerns about this condition with his GP. It follows that for the purpose of the Act that is the date his anxiety condition is taken to have been sustained.
Was Mr Red’s anxiety condition a result of reasonable administrative action taken in a reasonable manner?
Comcare accepts that Mr Red’s anxiety condition was contributed to, to a significant degree, by his employment with the Department. It contends however that his condition was due in part to the following five acts each of which constitute “reasonable administrative action taken in a reasonable manner in respect of [Mr Red’s] employment” and therefore it does not constitute a disease for the purpose of the Act:
1Administrative Action 1: On or about 3 December 2008, Mr Sullivan said to Mr Red words to the effect “I’d appreciate if it you wouldn’t tell my staff how to behave or upset my staff”
2Administrative Action 2: On or about 3 December 2008, Mr Red spoke with Mr Douse about the incident the previous day with Mrs Allcroft and what Mr Sullivan had said. During this discussion, Mr Douse “asked [Mr Red] to think about whether he was being reasonable”.
3Administrative Action 3: On 11 December 2008, Mr Whitelaw emailed Mr Red at 12.53 in relation to an email [Mr] Red had sent at 12.02. Mr Whitelaw stated, relevantly “The communication below was inappropriate ... and is insensitive to your fellow workers. I therefore ask you to withdraw same…”
4Administrative Action 4: On 12 December 2008, Mr Whitelaw emailed Mr Red at 9.29 relevantly stating that:
“… Thus I believe you unnecessarily inflamed the situation.
In terms of dealing with issues as they arise, we always need to be diplomatic in communications with fellow staff and if this fails raise it with our superiors. Saying someone is ‘yelling’ is inflammatory.
…my concern at the meeting was that you should now not inflame the situation any further by sending emails on the subject as an OH&S rep given action is in hand by your supervisor. Thus if I understand you will not send out anything further to fellow staff on the subject without your supervisors [sic] agreement until the issue is resolved then I am happy for you to continue as OH&S rep.”
5Administrative Action 5: On 15 December 2008, Mr Whitelaw conducted a “Mediation meeting” with Mr Red and Mrs Allcroft. Mr Douse and Mr Sullivan were also in attendance. There is limited evidence as to what was said at the meeting but the evidence indicates it was agreed between himself and Mrs Allcroft that she would undertake to tone down her loudness and both would show compassion to the other. The Applicant was not supported in his suggestion for the ‘one metre rule’ test.
Mr Red argues that these acts were neither reasonable nor taken in a reasonable manner.
Before considering the submissions made by the parties it is necessary to sketch in some background facts.
The one metre rule
In 2008 the so-called “one metre rule” became the source of dispute between MrRed and his managers.
In June2008 the Department of Defence adopted a “Noise Management Plan” prepared by the Defence Science and Technology Organisation (DSTO). The introduction to the Plan states:
Noise in the workplace can interfere with conversation; it can also be the cause of stress, poor concentration, and low productivity.
…
Noise management principles
A simple test to determine if person’s hearing is affected by noise around them can be done by observing the following: if having a conversation with someone one metre away from you, are you required to raise your voice? If so, it may be necessary to conduct a risk assessment.
…
A noise assessment is required if the level of noise an employee is exposed to is likely to exceed the exposure standard or where staff complain of being tired at the end of the day or suffering from stress or decreased work performance. In the last two instances the noise may not exceed 85dB (A) standard but it is the constant nature of the noise which impacts upon staff.
Noise can be considered harmful:
· If you have to raise your voice to speak to someone a meter away.
…
· When ringing or other noises in the ears can be heard after noise exposure.
….
Noise levels can be measured with a sound level meter and/or a personal sound exposure meter or dosometer. The dosometer must be worn for the duration of the working day and will record the employee’s total exposure throughout the shift.
Similar commentary is contained in the Australian Standard, “Occupational Noise Management”:
The noise level may be determined by either a direct measurement through the use of a sound level metre or through subjective judgment. One commonly used subjective judgment technique is that if ambient noise is sufficiently loud to force two people to use raised voices to communicate when approximately one metre apart then the noise level L_Aeq,_T probably exceeds 85 dB(A).
In Mr Red’s opinion these documents establish “the one metre rule” as the proper measure for determining safe noise levels within a workplace. He contends that by refusing to apply this “rule”, the Department not only breached its own policies but put his health, and that of his colleagues, at risk.
Mr Red’s managers did not share Mr Red’s opinion that the one metre rule was mandatory but instead considered it to be only a guide. Mr Whitelaw was of the opinion that while informative, the rule was inherently subjective and dependent upon a range of variables such as the clarity and volume of the speaker’s voice, the quality of a person’s hearing and the type of background noise (if any). In his opinion a better approach to ensuring safe noise levels was to request staff to maintain a “sensible, normal office working environment”. Mr Red believed this approach deficient and that the “one metre rule” was a superior measure because as he saw it as objective and certain.
From December 2008 until his resignation in April 2011, Mr Red advocated for the introduction of the one metre rule and a number of other OH&S reforms.
Events of December 2008
Triggered by an altercation with Mrs Allcroft, Mr Red had numerous dealings with his managers throughout December 2008. These included the five alleged reasonable administrative actions.
Altercation between Mr Red and Mrs Allcroft
According to Mr Red, despite informing Mrs Allcroft on numerous occasions that he was disturbed by the noise she created, she refused to moderate her voice. He claims on return from leave in September 2008 he mentioned to Mrs Allcroft that he had a “quiet and peaceful” holiday and she replied: “Well that’s going to change. I’m loud. I’ve been that way for twenty years”. According to Mr Red this was but one of a number of instances bullying by Mrs Allcroft.
Mr Red testified that late in the afternoon of 2 December 2008 after being subjected to between six to eight minutes of Mrs Allcroft “screaming and shrieking” he pleaded with her to “stop the noise”. On his account Mrs Allcroft became enraged and called on her supervisor, Mr Matt Sullivan, to “do something”. Mr Sullivan did not intervene. According to Mr Red, Mrs Allcroft said he should transfer to Defence Plaza (a Departmental workplace based in Sydney’s CBD) if he had problems. Mrs Allcroft left work in tears. Mr Red said that he was very distressed by the incident.
Meeting between Messrs Sullivan and Red (Administrative Action 1)
The following day Mr Red approached Mr Sullivan. According to Mr Red the following conversation took place:
Mr Red: Good morning, Matt
No Response
Mr Red:I’m taking the matter to Equity and Diversity so that you don’t have to get involved.
Mr Sullivan: I would appreciate it if you don’t upset my staff
Mr Red:I’m taking it to Equity and Diversity so you don’t have to get involved and there will be a neutral mediator
Mr Sullivan gives a slightly, but not materially different, account of that conversation. He recalled saying “I’d appreciate if you wouldn’t tell my staff how to behave or upset my staff”.
Mr Red said that he found Mr Sullivan’s comments “extremely hurtful” because his hearing problems were caused by Mrs Allcroft’s shrieks and Mr Sullivan had been aware “for years” of the problem.
Meeting between Mr Red and Mr Douse (Administrative Action 2)
On 3 December 2008, Mr Red reported the incident with Mrs Allcroft and the subsequent discussion with Mr Sullivan, to his immediate supervisor, Mr Andrew Douse. In an email to Mr Whitelaw, Mr Douse gave this account of that conversation:
1On arriving this morning at approx 0830, Will [Red] let me know there had been an incident the previous evening and asked to discuss it.
2Shortly after that I asked him into my office and asked him to tell me what had happened.
3He stated that Cathy Allcroft had been talking in a loud voice and making loud noises the previous evening (after I had left for the day) which he said made it impossible for him to work.
4He asked Cathy to “stop yelling” and this is when things became unpleasant between them.
5Apparently Matt Sullivan became involved and asked Will to stop upsetting his staff member. At this stage I believe Will packed up and went home.
6Will also reports he has been suffering tinnitus (ringing in the ears) which he claims is aggravated by Cathy’s loudness (he used the term “shrieking”). He stated this gets worse when Cathy is very loud and some times [sic] results in a “hissing in the ears”.
7I discussed with him the fact the office is open plan and a level of noise is expected. We also discussed our own previous experiences of different work environments and levels of noise that are common even in office environments.
8Will had some time ago reported to me that he was sometimes disturbed by Cathy’s loud voice. I told him I had monitored the situation for a couple of weeks after that and I found Cathy to be “noisy” only infrequently. I asked him to think about whether he was being reasonable. [emphasis added]
9More seriously, Will then went on to say he felt Cathy was using her voice deliberately to bully him. I expressed disbelief at this.
10Will stated he wished to engage an independent person to assist with the issue and intended contacting an equity adviser.
11I informed him I would make you aware of the situation.
Mr Red also made a contemporaneous note of that conversation but only recorded his comments not those made by Mr Douse. While Mr Red’s account is more detailed, it is broadly consistent with that given by Mr Douse.
Mr Red testified that he found Mr Douse’s request “to think about whether he was being reasonable” to be patronising, demeaning and offensive and was humiliated and offended by that comment. In written submissions Mr Red disputed that Mr Douse made that comment. We think it probable that that statement was made. It is consistent with Mr Red’s evidence and the contemporaneous note made by Mr Douse.
Shortly after that meeting, Mr Red started wearing ear plugs to work, an action he considered necessary to protect himself from the noise generated by Mrs Allcroft.
Mr Red emails staff about noise issues
On 11 December 2008 Mr Red emailed colleagues referring to the claim made in an email sent a few months earlier of a workplace “hearing loss cluster”. Mr Red based that opinion on his understanding that three of his colleagues had ear problems: Mr Douse (who admits telling Mr Red he was prone to ear infections but denies saying he had hearing loss), Mrs Allcroft (who Mr Red claims told him she had experienced “ringing in the ears”) and Mr O’Connor (who Mr Red claims once told him he had wax or water in the ears). After setting out some information about the DTSO Noise Plan and the one metre rule Mr Red wrote:
Each employee should consider his or her action in all circumstances to reduce the impact of noise. For example, if an employee is aware that he or she can only communicate with a colleague by excessively raising his or her voice then that employee should take such safety options (and the more professional alternatives) as i) moving closer to the colleague or ii) telephoning the colleague.
Shortly after receiving that email Mrs Allcroft went home in tears. Mr Red claims that he overheard her apologise to Messrs Douse and Ramsey and say, “I’m not going to apologise to that bum [Mr Red] over there”.
Mr Whitelaw’s reply (Administrative Action 3)
Within an hour of receipt of that email Mr Whitelaw replied to Mr Red:
The communication below [Mr Red’s email of the previous day] was inappropriate as it does not follow the process driven by your supervisor and is insensitive to your fellow workers. I therefore ask you to withdraw the same and work with your supervisor to resolve this issue.
Mr Whitelaw copied his reply to the seven recipients of Mr Red’s email, which included Mrs Allcroft.
Mr Red’s response
Mr Red replied at length to Mr Whitelaw and copied in Mr Douse. He argued that relocation to Defence Plaza was not a viable opinion and went on to propose a “simple and proper” solution — that Mrs Allcroft be requested to stop speaking loudly and “to obey the one metre rule”. He went on to assert that his last email was not directed at any one person and he was obliged to raise the issue of noise in the workplace because it was “an OH&S issue”. He rejected “the personalisation of any OH&S issue ” and asserted that he had a “bona fide case”:
1the DSTO NOISE Management document
2my hearing problem occurred during one of Catherine’s outbursts
366% of people had symptoms which accord with “acoustic shock” as outlined in the DSTO noise Management Plan
4The “one metre rule” was not being adhered to
5The failure of any of the other three to inform their doctor that there was a significant proportion of personnel in the same office with the hearing issues [sic] and that one was caused by a shriek (the doctors were not properly informed of all the circumstances.
The communication [Mr Red’s email of the previous day] was appropriate because it was a safety issue. The communication was in neutral informative language and did not attack anyone personally.
The commencement date of the noise issue was about 6 months ago. The issue has not been dealt with swiftly, which is not understandable since it is an OH&S issue.
I am surprised that you raise such things as sensitivity when in these serious OH&S circumstances the matter should not be fettered by personalities.
On receipt of that email Mr Whitelaw summoned Mr Red to a meeting. Mr Red made the following note of that meeting:
[John Whitelaw] expressed his opinion my sending of the email that informed everyone of the noise problems was ‘inflammatory’ — I rejected that view as I had an obligation to inform workers in the immediate vicinity of the noise issue. I had made no reference to [Catherine Allcroft] as the source of the problem. Workers were entitled to a safe workplace.
Following that meeting Mr Red drafted an apology to Mrs Allcroft, which he circulated to Messrs Whitelaw and Douse for comment. It is unclear whether an apology was sent.
Mr Whitelaw emails Mr Red (Administrative Action 4)

On 12 December 2008 in an email to Mr Red and copied to Mr Douse, Mr Whitelaw wrote:
I am concerned that you report you believe you have a hearing problem caused by the office environment. I am also concerned to learn this situation has existed for months without formal report or action. The approach to the situation is to ascertain whether you have a hearing problem caused by the office environment and Andrew [Douse] is seeking OH&S guidance to progress.
The DSTO document providing guidance to which you refer is a draft and is inconsistent in the quotes below in that regarding the one meter test it says “can be considered harmful” and it also says “may be necessary to conduct a risk assessment”. This is clearly only a draft approximate subjective measure obviously requiring quantification as indicated.
Your judgement of the one metre rule appears to be different from others who remain unconvinced of any potential hazard. Consequently, the collective judgement is that others are unlikely to be affected by what is a reasonably common open office type environment. This does not mean that you are unaffected. Consequently, if you feel you may potentially suffer damage, a prudent precaution is to offer you an immediate relocation to DP-S until the problem is resolved.
As it is generally accepted that Cathy [Allcroft] often speaks loudly, my intention is to ask through her supervisor that she try to speak at a normal volume. This may alleviate the problem and we may feel you don’t need to relocate.
The reason I mentioned sensitivities was that action was in hand by your supervisor and you were aware another staff member was sensitive to the issue. Thus I believe you unnecessarily inflamed the situation.
In terms of dealing with issues as they arise, we always need to be diplomatic in communications with fellow staff and if this fails raise it with our superiors. Saying someone is ‘yelling’ is inflammatory.
I appreciate your good OH&S work and my concern at the meeting was that you should now not inflame the situation any further by sending emails on the subject as an OH&S rep given action is in hand by your supervisor. Thus if I understand you will not send out anything further to fellow staff on the subject without your supervisors agreement until the issue is resolved then I am happy for you to continue as OH&S rep. [emphasis added]
Mediation meeting (Administrative Action 5)
On 15 December 2008, a “mediation meeting” chaired by Mr Whitelaw and attended by Messrs Red, Douse and Sullivan and Mrs Allcroft was held. In the course of that meeting, Mrs Allcroft and Mr Red agreed to show compassion to each other and Mrs Allcroft undertook to tone down her voice. At some point the meeting descended into a heated exchange between Mr Red and his managers about the one metre rule and related issues.
Events following the mediation
Following the mediation tensions between Mrs Allcroft and Mr Red apparently eased for a period, although Mr Red maintains that she continued to “shriek and cackle”.
In December 2008 Mr Whitelaw directed Mr Douse to organise a noise assessment of the office. The assessment was not conducted until May the following year and the results were not published until October 2009. The assessment found that “ambient and final noise levels were measured at a level that did not illustrate the capacity for hearing loss”. Mr Red was highly critical of that assessment and believed that the methodology was flawed because, among other things, it was conducted in the absence of Mrs Allcroft and other members of staff. In addition he was critical in the delay in commissioning the assessment and the finalisation of the report. In his opinion this was further evidence of the Department failing to properly address his “safety issues”.
In January 2010 Mr Red and his colleagues working in the Contracting Bureau section of the Department were transferred to Defence Plaza. Mrs Allcroft, who worked in a different section, remained at Garden Island. Mr Red continued to agitate for steps to be taken to re-educate Mrs Allcroft and for the issue to be brought to the attention of “those responsible for prosecuting OH&S offences”.
Mr Red’s mental health deteriorated throughout the course of 2009 and 2010. He was certified unfit for work in August 2010 and resigned from the Department in April 2011 believing he was unable to continue on account of ill health.
Was each action “administrative action … in respect of Mr Red's employment”?
The meaning of the expression “…administrative action … in respect of the employee's employment” in s 5A(1) was considered in the recent decisions of Commonwealth Bank of Australia v Reeve and Anor 125 ALD 181 and Drenth v Comcare (2012) 128 ALD 1.
Reeve makes clear that matters of general administration, management and the implementation of policy do not constitute exclusory action caught by s 5A, even where those matters might affect the employee (per Gray J at [38]). To constitute “administrative action” the subject action must be “directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment” (per Rares and Tracey JJ in Reeve at [59]; per Rares, McKerracher and Murphy JJ in Drenth at [22]).
Comcare contends that each of the five actions on which it relies constitute “counselling action (whether formal or informal) taken in respect of [Mr Red's] employment”, one of the examples of administrative action listed by s 5A(2) of the Act.
With one exception, (the discussion between Mr Red and Mr Sullivan (Administrative Action 1)), only a portion of each “event” on which Comcare relies could be properly described as counselling or other action directed at Mr Red’s employment. For example, the robust exchange that took place at the mediation meeting between Mr Red and his managers about the merits of the one metre rule and general matters of occupational health and safety could not be described as administrative action taken in respect of Mr Red’s employment. While his managers did not share and were probably exasperated by Mr Red’s opinions, the evidence does not suggest that during that meeting he was counselled or reprimanded for holding or expressing those views, his dealings with Mrs Allcroft, or, the email of 11 December 2008. In our opinion only that part of the meeting devoted to mediating an agreement between Mr Red and Mrs Allcroft constitutes administrative action taken in respect of Mr Red’s employment.
Similarly, only a portion of each email (Administrative Actions 3 and 4) could be said to constitute administrative action in respect of Mr Red’s employment. Much of the second email for example was devoted to challenging Mr Red’s opinion about the status of the “DTSO document” and the operation of the one metre rule. For the reasons set out this does not constitute administrative action taken in respect of Mr Red’s employment.
There may be cases where the purported administrative action is so incidental to the interaction between an employer and their employee that it could not be characterised as an action taken in respect of the employee’s employment. In this case however we are satisfied that the conduct particularised by Comcare in respect of Administrative Actions 1, 2, 3 and 4, constitutes “administrative action taken … in respect of [Mr Red’s] employment”. If, in respect of the mediation, Comcare is asserting that that part of the meeting described as Mr Red “not being supported in his suggestion for the ‘one metre rule’ test” constitutes administrative action, we cannot agree. In our opinion only that part of the meeting devoted to brokering an agreement between Mr Red and Mrs Allcroft constitutes administrative action taken in respect of Mr Red’s employment.
Was each action “reasonable” administrative action?
Mr Red contends that each action relied upon by Comcare was unreasonable. He submits that in assessing whether these acts were reasonable, regard should be had to, among other things, the alleged:
Inaction on the part of his managers in respect of the noise hazard created by Mrs Allcroft
Failure by his managers to implement the one metre rule and to heed his advice about that and other safety related matters
Delay in finalising, and the flawed methodology employed in, the noise level assessment
Failure by the Department to comply with OH&S standards
Bias demonstrated by Messrs Whitelaw, Douse and Sullivan towards Mrs Allcroft and against him
Failure by Messrs Dowse and Sullivan to obtain his version of events before suggesting he had upset Mrs Allcroft or acted unreasonably
Failure by Mr Sullivan to afford him procedural fairness by requesting that he consider whether he was behaving reasonably towards Mrs Allcroft without providing particulars.
In National Australia Bank Limited v KRDV [2012] FCA 543, Cowdroy J in discussing s 5A, cited with approval at [51], the following passage from Keen v Workers Rehabilitation & Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42 at [63]:
[W]hether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
As the above passage makes clear the assessment of whether the impugned action was reasonable cannot be undertaken in a vacuum and regard must be had to the context in which the action was taken and the action itself. While there may be instances where an employer’s conduct is so egregious that any action taken in respect of an employee’s employment is likely to be unreasonable, it does not follow that because some aspect of an employer’s treatment of an employee was lacking, any administrative action taken in respect of that employee, will be unreasonable. The question posed by s 5A is whether the subject action not the totality of the employer’s conduct was reasonable, although the latter may inform the assessment of the former.
Administrative Action 1
Administrative Action 1 followed an altercation between Mrs Allcorft and Mr Red. It was a brief discussion, probably no more than two minutes, in the course of which Mr Sullivan requested Mr Red not to upset his staff.
Mr Red believes that comment was in effect a direction by Mr Sullivan not to pursue his rights under OH&S legislation. While Mr Red may perceive that was the meaning conveyed by Mr Sullivan, in our opinion, objectively assessed, the words used by Mr Sullivan did not convey that meaning. In our opinion the comment was nothing more than a simple request made to Mr Red not to upset a work colleague.
While entirely reasonable for Mr Red to request Mrs Allcroft to moderate her voice, he was not being counselled for doing so but rather for upsetting Mrs Allcroft: he was effectively being asked to “tone it down”. The intervention was reasonable and proportionate in the circumstances. Notably it was not a public rebuke.
Having regard to all the circumstances in our opinion the action taken was reasonable.
Administrative Action 2
This incident took place in the context of a wide-ranging discussion in the course of which Mr Douse asked Mr Red to reflect on whether he was being reasonable. (See par [112], pt 8 above).
As noted Mr Red had previously complained to Mr Douse about the noise generated by Mrs Allcroft. On the basis of his own observations Mr Douse concluded that those concerns were unfounded and notified him of that conclusion in the course of this meeting. While perhaps unintended, in the context of the conversation, Mr Douse’s request that Mr Red “think about whether he was being reasonable” appears directed at Mr Red’s complaint of being disturbed by noise, not his conduct towards Mrs Allcroft. Had Mr Douse stated during the course of the meeting that Mr Red’s concerns would be reviewed, his comments would have been entirely appropriate. However this did not occur and Mr Red was told there was no proper basis for his concerns and — in that context — was requested “to think about whether he was being reasonable”. Having regard to the conversation as a whole and the background to the complaint, we are unable to conclude that the subject action was reasonable.
Administrative Actions 3 and 4
In his first email Mr Whitelaw directed Mr Red not to use his position as an OH&S officer to agitate his complaint about Mrs Allcroft. He made similar comments in his second email and, in addition, cautioned Mr Red against using “inflammatory language”.
Mr Red contends that both emails were unreasonable because there was no basis upon which Mr Whitelaw could have concluded that his initiating email was either a criticism of Mrs Allcroft, or, had the potential to inflame their relationship. While this may not have been Mr Red’s intention, given that the email was sent just over a week after the altercation with Mrs Allcroft, and the likelihood that in the intervening period, it had become a matter of common knowledge among staff, on any fair reading, Mr Red’s email amounted to an implicit criticism of Mrs Allcroft.
In these circumstances it was entirely reasonable for Mr Whitelaw to intervene and request that the dispute between two work colleagues not be conducted in a public forum, particularly given that Mr Red was purporting to act in his capacity as an OH&S representative. We find that the relevant portion of each email constitutes reasonable administrative action.
Administrative Action 5
For the reasons discussed below we are of the opinion that the mediation meeting was not reasonable.
Was each action taken in a reasonable manner?
The mediation meeting
The stated purpose of the mediation meeting was to mediate “a way forward” between Mr Red and Mrs Allcroft.
While the stated purpose of an action is relevant to the assessment of whether it was reasonable and taken in a reasonable manner, so too is what actually occurred. As noted an indeterminate part of the meeting consisted of a heated exchange between Mr Red and his managers about the one metre rule and related matters. As a consequence, the stoush was witnessed by Mrs Allcroft, the very person with whom Mr Red had been urged to repair his relationship. In our opinion given the context in which it occurred the portion of the meeting devoted to the mediation could not be said to constitute reasonable administrative action.
We accept Mr Red’s claim that he was not notified that supervisors Messrs Sullivan and Douse would be attending the mediation and that at the meeting was informed that they were attending in the role of observers. That claim is uncontradicted and consistent with Mr Sullivan’s evidence and Mr Red’s email to Mr Whitelaw sent shortly after the meeting:
The intervention by Messrs Douse and Sullivan was probably not the only factor that contributed to the meeting becoming heated. As Mr Whitelaw suggested, Mr Red probably also contributed. Nonetheless in the context of a meeting where the stated purpose was to broker an agreement between work colleagues and ground rules for its conduct had been established, the failure to observe those rules is further evidence indicating that the action was not taken in a reasonable manner. While that portion of the meeting does not constitute administrative action, the assessment of the character of, and the manner in which, the administrative action was taken cannot be made in insolation from the context in which the action occurred.
First email
Mr Whitelaw’s email of 11 December 2008 rebuking Mr Red for his email of the same day was copied to Mrs Allcroft, Mr Red’s colleagues and others. The wide circulation of that email in circumstances where Mr Red’s relationship with Mrs Allcroft was already strained, and it was known that he had complained of being disturbed by work place noise, in our opinion was a disproportionate response. Mr Whitelaw could have achieved his objective of stopping Mr Red from pursuing the issue in the manner he did, by communicating directly with Mr Red. It is no answer that Mr Whitelaw was merely copying in the recipients of Mr Red’s email. Mr Whitelaw was Mr Red’s manager and was, or ought to have been aware, that a public rebuke of that sort had the potential to embarrass and humiliate Mr Red. In our view the wide circulation of Mr Whitelaw’s email could not be said to be action taken in a reasonable manner.
Administrative Actions 1 and 4
In our opinion Administrative Action 1 and 4 were both undertaken in a reasonable manner. There is nothing to suggest that Mr Sullivan was aggressive or overbearing during his meeting with Mr Red. Mr Whitelaw’s second email to Mr Red (which was only copied to Mr Douse) was measured in tone and content.
Conclusion
We are satisfied that Administrative Actions 1 and 4 but not 2, 3 and 5 constitute reasonable administrative action taken in a reasonable manner in respect of Mr Red’s employment.
Was Mr Red’s anxiety condition “a result of” Administrative Actions 1 and/or 4?
The final issue for determination is whether Mr Red’s anxiety condition was “a result of” Administrative Actions 1 and/or 4. By the operation of s 5A(1) if either was an operative cause of Mr Red’s anxiety condition, he will have no entitlement to compensation, even if there may have been one other operative causes of his condition (Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at [18] – [26]; Commonwealth Bank of Australia v Reeve at [54] – [56]; Drenth v Comcare at [29]).
Comcare acknowledges that Mr Red’s condition was caused by many factors, of which employment was significant. It argues however that Mr Red’s condition was also a result of Administrative Actions 1 and 4 and therefore, no issue of liability arises.
In Dr Dawes’s opinion Mr Red is a highly emotional person with a predisposition to anxiety that can be triggered by external stressors. In his report of 5 November 2010 he opined that there were three causes of Mr Red’s anxiety condition: “screaming” in the workplace; lack of appropriate OH&S procedures to rectify this problem; and “covering up his rights” by senior managers. In terms of their relative contribution Dr Dawes considered Mr Red’s tinnitus to be the most significant followed by his managers’ failure to accept his claim that he was suffering from the condition and not providing him with assistance when sought.
In cross–examination Dr Dawes agreed with the proposition that Mr Red developed an anxiety condition in part because he felt he had been unfairly criticised and his efforts as an OH&S representative had not been properly acknowledged. In Dr Dawes’s opinion, Mr Red’s anxiety increased “markedly” as a result of what he perceived to be criticisms directed at him by his managers for his dealings with Mrs Allcroft.
Mr Red’s evidence was that he was absolutely offended and humiliated by what Mr Sullivan had said to him on 3 December 2008. He also stated that he believed the assertion made by Mr Whitelaw in his email of 12 December 2008, that he had “unnecessarily inflamed the situation [with Mrs Allcroft]” amounted to bullying and intimidation.
We accept that Mr Red held an honest belief that his workplace environment was dangerous to his health. He was also honest in describing his subjective perceptions of the responses of his managers. Whether the notional “reasonable person” might have reacted to, or perceived the environment the way Mr Red did is not to the point. Mr Red was very sensitive to noise levels in the office. His perception was that they were harmful to him and others and not only did his managers fail to mitigate the potential harm but unfairly criticised him for raising the issue and insisting on action being taken.

Applying our common sense and experience of the world, it seems to us that when human beings are subjected to environments that they perceive to be harmful to them they become anxious. When they complain they are expressing their anxieties. If those complaints are not addressed or if their concerns are turned back against them (or if that is their perception) they tend to become more rather than less anxious. That is what happened in Mr Red’s case.
Throughout December 2008 and the first half of 2009, Mr Red was counselled and/or criticised for his dealings with Mrs Allcroft and his approach to the OH&S issue. Throughout this period he believed that his legitimate concerns were being ignored. In our opinion these interactions and Mr Red’s perception of them contributed to the development of his anxiety condition.
It is difficult to quantify the extent to which, if any, the various interactions between Mr Red and his managers contributed to the development of his anxiety disorder. Administrative Actions 1 and 4 were but two of a number of instances which caused Mr Red to be offended and perceive that he was being treated unfairly. They were by no means the most significant. Nonetheless while not the main or one of the main causes we are satisfied on the balance of probabilities that each was an operative cause of Mr Red’s anxiety condition. It follows that his condition was a “result of” these actions and therefore it does not constitute an injury for the purpose of the Act.
In reaching this decision we accept as argued by Mr Red that aspects of the treatment he was subjected to by his managers were less than ideal — for example, the delay in finalising the noise assessment and the conduct of the mediation meeting. However the issue we must decide is not whether all aspects of Mr Red’s treatment throughout the relevant period complied with relevant health and safety rules or constituted “best practice” but rather whether his condition was at least in part a result of reasonable administrative action taken in a reasonable manner. For the reasons given we find that it was.
Given this finding we must affirm the decision under review.
Are Comcare and its lawyers in contempt of the Tribunal?
Mr Red contends that by failing to take steps to apply and enforce the one metre rule Comcare and its lawyers were in contempt of the Tribunal and not only put at risk his health but that of other witnesses and the members of the Tribunal. Furthermore, he asserts that by failing to disclose to the Tribunal relevant provisions of OH&S legalisation, including the purported 50 dB limit, Comcare and its lawyers were in breach of, among other things, the model litigant rules, the Australian Public Service Code of Conduct and their duty to the Tribunal. It was not sufficient, he argued for Comcare, an expert in the area of health and safety, to submit to the “uninformed position of the Tribunal” but rather, it should have taken action to ensure that sound levels throughout the hearing were able to be constantly measured and monitored.
Section 63(5) of the Administrative Appeals Tribunal Act 1975 (Cth) makes it an offence for a person to engage in conduct that would, if the Tribunal were a court of record, constitute a contempt of court. Leaving to one side the issue of whether the failure to measure and monitor sound levels throughout a hearing constitutes a breach of health and safety rules, the conduct about which Mr Red complains could not reasonably be said to constitute “contempt of court”. While that term catches a broad range of conduct it is generally characterised by “an interference with the due administration of justice either in a particular case or more generally as a continuing process” (Attorney General v Leveller Magazine Ltd [1979] AC 440 at 449). It is not clear to us how the failure of Comcare and/or its lawyers to insist or recommend to the Tribunal or the Registrar of the AAT, that measures be taken to monitor noise levels throughout a hearing could be said to have a tendency to interfere with the administration of justice.
Mr Red also argues that by failing to notify the Tribunal that a “noise metre or equivalent” should be employed throughout the hearing, Comcare and its lawyers were in breach of the model litigant rules by requiring him to “prove a matter which … the agency knows to be true”. (Legal Service Directions 2005 Appendix B s 2(e)(ii)). This argument is misconceived. The purpose of these rules is to ensure that Commonwealth instrumentalities adopt the highest level of fairness in the conduct of court and tribunal proceedings, not to impose a requirement that an agency or their representatives assist the AAT in matters of general administration concerning the operation of the Tribunal.
Suffice to say the other issues raised by Mr Red do not constitute a contempt of court. They relate to general matters about the relationship between the Commonwealth and Mr Red and Comcare and the Tribunal. By the combined operation of the Act and the AAT Act, our jurisdiction is confined to the reviewable decision the subject of Mr Red’s application for review and therefore we are unable to determine those matters.
For these reasons we are not satisfied that the conduct about which Mr Red complains constitutes contempt of the Tribunal.

I certify that the preceding 169 (one hundred and sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton, and Dr Isles, Member
..........................[SGD]..............................................
Associate to Senior Member Britton
Dated

Date(s) of hearing 17, 18 and 20 December 2012 and 22 January 2013

Applicant

In person

Counsel for the Respondent

Sophie Callan

Solicitors for the Respondent

Norton Rose Australia

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0068
Re	William Red
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton Dr Isles, Member
Date	8 March 2013
Place	Sydney

Date(s) of hearing	17, 18 and 20 December 2012 and 22 January 2013
Applicant	In person
Counsel for the Respondent	Sophie Callan
Solicitors for the Respondent	Norton Rose Australia