FEDERAL COURT OF AUSTRALIA

Wiegand v Comcare Australia [2002] FCA 1464

COMPENSATION – appeal from a decision of the Administrative Appeals Tribunal – whether the applicant suffered an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment with the Australian Taxation Office – applicant suffering a major depressive disorder – whether various events which occurred during the applicant’s employment contributed to a material degree to an aggravation of that condition – whether condition and incapacity caused solely by underlying personality traits – appeal allowed.

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 applied

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 referred to

Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 distinguished

JOACHIM WIEGAND v COMCARE AUSTRALIA

S 183 of 2002

von DOUSSA J

ADELAIDE

5 DECEMBER 2002

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         Appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against the decision of the Administrative Appeals Tribunal dated 28 June 2002 allowed.

2.         Decision of the Administrative Appeals Tribunal set aside.

3.         Matter remitted to the Administrative Appeals Tribunal for re-hearing according to law.

4.         No order as to costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against a decision of the Administrative Appeals Tribunal (the Tribunal) dated 28 June 2002.  Such an appeal to this Court lies only on a question of law.

2                     The Tribunal by its decision affirmed a decision of the respondent (Comcare Australia) dated 22 September 1998 which in turn affirmed a decision dated 10 June 1998 by a delegate of the respondent to deny liability to pay compensation to the applicant (Mr Wiegand) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of a claim for “major depression”.  That claim was made by Mr Wiegand on 12 May 1998.  He asserted in his claim form that the following events which occurred in the course of his employment with the Australian Taxation Office (ATO) contributed to this condition:  namely “Defamation and victimisation in 1990.  Ongoing discrimination etc.  Lodged various grievances which all ended as white wash.  Asked Comcare for help – in vain.”

3                     The applicant was born in Germany on 16 September 1943.  He migrated to Australia in about 1984 and in about April or May 1986 obtained employment as a clerical officer with the ATO, a position which he held until ceasing work because of his medical condition in about January 1998. 

4                     The Tribunal received medical evidence from three psychiatrists.  It received a medical report dated 24 June 1998 from Dr Tony Davis who had examined the applicant on two occasions in 1998.  It received written reports and oral evidence from Dr David Coyte, the applicant’s treating psychiatrist, who had been seeing him about once a fortnight since February 1998.  The Tribunal also received a long report and oral evidence from Professor Goldney who examined the applicant on two occasions in May 2001 at the request of the respondent.  The psychiatrists were in agreement that the applicant suffered a major depressive disorder, and the Tribunal so found.  The applicant’s claim for compensation was based on the assertion that this condition had been aggravated by many events which had occurred over a substantial period of time in the course of his employment at the ATO, with the result that he became incapacitated for work from January 1998. 

5                     Having regard to the information in the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act, the written contentions filed by the parties, and the relevant provisions of the SRC Act, the ultimate issue for determination by the Tribunal was a narrow one.  The applicant claimed compensation under s 14 of the SRC Act which provides that Comcare is liable to pay compensation in accordance with the Act “in respect of an injury suffered by an employee if the injury results in … incapacity for work …”.  Section 4 of the SRC Act relevantly contains the following definitions:

“injury means:

(a)               a disease suffered by an employee;  or

(b)               an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

and

“disease means:

(a)               any ailment suffered by an employee;  or

(b)               the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”

The respondent conceded before the Tribunal that at least at the time when the applicant ceased work in January 1998 he was incapacitated by a psychiatric condition.  That condition, being the major depressive disorder diagnosed by the doctors, was plainly an ailment within the meaning of the definition of disease.  The question for determination was whether that ailment, or an aggravation of the ailment “was contributed to in a material degree by the employee’s employment” with the ATO. 

6                     The respondent denied that the ailment suffered by Mr Wiegand was contributed to in a material degree by his employment.  The respondent’s written contentions before the Tribunal noted that Dr Coyte in a report dated 21 February 2000 stated that:

“Mr Wiegand’s depression has come about because of the impact of the perceived injustices and imperfections of the workplace upon a man with highly principled, rigid rules and a strong sense of justice needing to be done.”

The respondent contended that the complaints and other matters raised by Mr Wiegand during his employment with the ATO had been properly dealt with by the ATO in accordance with appropriate procedures, whether through internal review, review by the Commonwealth Ombudsman, Privacy Commissioner, or otherwise.  The respondent contended it was the applicant’s adverse perceptions of these matters, not his employment that resulted in his condition.

7                     The Tribunal concluded lengthy reasons for decision by saying:

“91.     The Tribunal in considering the work environment in the ATO and the evidence before it finds that the applicant’s condition cannot materially be attributed to his work at the ATO.”

and accordingly the Tribunal affirmed the respondent’s decision to deny liability to pay compensation. 

8                     Mr Wiegand was without legal representation during the hearing before the Tribunal.  The notice of appeal to this Court was also drafted without legal assistance.  The notice of appeal identifies the following questions of law:

(a)                denial of natural justice;

(b)               denial of due process;

(c)                failure to consider evidence;

(d)               failure to subpoena any witnesses as requested;

(e)                failure to enforce order to produce documents;

(f)                 failure to allow sufficient time for cross-examination;

(g)                misrepresentation and/or suppression of facts;

(h)                undue weight given to evidence of Comcare’s expert.

The grounds stated in the notice of appeal raise a number of procedural issues to which it might be possible to relate several of the identified questions of law.  However, the notice of appeal is deficient in form.  To some extent the deficiencies have been overcome by a written outline of argument subsequently filed by Mr Wiegand.  However the outline of argument tends to focus on matters going to the merits of the decision, rather than to questions of law.  Notwithstanding the criticisms that may be made of the notice of appeal and the outline of argument, together they squarely raise a complaint that the Tribunal erred as a matter of law in finding that his major depressive disorder, or an aggravation of that disorder, was not contributed to in a material degree by his employment.

9                     For reasons which follow I consider this complaint should be upheld.  I have reached the conclusion that the Tribunal erred in law in applying the definition of disease to the factual material which was led in evidence before the Tribunal, and the decision under appeal must be set aside.  In these circumstances it is unnecessary to consider the procedural complaints raised by Mr Wiegand in his notice of appeal. 

Evidence before the Tribunal

10                  The facts, issues and contentions filed by Mr Wiegand, and his oral evidence, canvass many situations and events at the ATO which he claimed had contributed to his medical condition.  These include:

·                     When Mr Wiegand commenced employment he was in good health.  Bad air, passive smoke, and other fumes in his workplace caused him ill health which led to him being erroneously diagnosed as suffering asthma. 

·                     Poor relationship with a section manager who started spreading untruths about him.  Mr Wiegand complained to the Director of the section which led to Mr Wiegand being transferred to the audit section.

·                     In 1988 Mr Wiegand was involved in a motor accident which caused a compound fracture of his leg.  Comcare at first denied liability, and later there was disagreement with Comcare over the reimbursement for various expenses.

·                     In 1989 Mr Wiegand applied for a promotion to the ASO4 level.  There were two positions to be filled.  Two other colleagues were successful.  Mr Wiegand considered that his work performance was better than that of those promoted.  He discussed the issue with supervisors who showed disinterest.  He decided to appeal.  The promoted officers raised claims that implied that Mr Wiegand had damaged  computer hardware and software and had broken the secrecy provisions of s 16 of the Income Tax Assessment Act 1936 (Cth).  He considered this conduct to be very threatening.  Mr Wiegand denied these allegations but management took no steps to quash them.  He told management that he would request the Australian Federal Police to investigate.  He said that the section manager then called a meeting where the allegations were discussed, and he was then given a written statement stating that they were only rumours and nothing more.  He said that all this had a bad effect on him and due to his age and being without any qualifications he was concerned as to whether or not he could obtain other employment.  He was so concerned about the allegations that he got a solicitor to start legal action for defamation against the two officers who had made defamatory statements.

·                     In early 1992 after the introduction of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) Mr Wiegand became an Occupational Health and Safety (OH&S) representative.  He said that he took this position seriously but his commitment to this responsibility led to him being lectured by his superiors on the need to perform his ordinary duties, and not to spend a lot of time on health and occupational issues.  He said many complaints were received by him, and passed on, about the bad air and other environmental conditions of the workplace before action was taken by ATO to investigate the complaints and to rectify problems. 

·                     In 1993 Mr Wiegand made an application for a part-time position in lieu of his full-time position.  The person responsible for deciding the application said that he would support the application if Mr Wiegand agreed to relinquish union activity and his role as an OH&S representative.  Mr Wiegand said that he was told that his application would not otherwise be considered, but he was not told why he should give up these activities.  Disputation occurred over whether the occupational, health and safety responsibilities formed part of his work.  Mr Wiegand lodged a grievance complaint against the officer concerned whose behaviour he said had caused him to get upset.  After the grievance complaint was made, Mr Wiegand was informed that his application would be accepted for part-time work without him being required to give up the other activities.  Notwithstanding his request that his grievance be nonetheless considered, this did not happen.  He said the failure to follow up his grievance caused him disappointment and upset.  [In respect of this complaint, the Tribunal said that it accepted that Mr Wiegand enjoyed his role as an OH&S representative and his keen desire to improve conditions in the workforce but found that the request for him to relinquish the role “no matter how upsetting, does not amount to discrimination”.]

·                     In 1993 the applicant became aware that the same officer against whom he had lodged the grievance complaint was keeping a “secret” file on him.  He confronted the officer and requested to see the file.  The officer agreed that there was a file which he produced.  Mr Wiegand requested a copy of the contents but believes that only some of the papers were given to him.  Mr Wiegand challenged the officer’s right to open and start a file.  The explanation given to him was that the file was to track his work output.

·                     In 1993 Mr Wiegand was advised by an officer that he had “shortlisted” Mr Wiegand out of consideration for a promotion because the officer was still convinced that Mr Wiegand had broken the secrecy provisions of s 16 of the Income Tax Assessment Act when he was making enquiries about the workload of the two people who had obtained promotion over him in 1989. 

·                     In June 1997 the applicant’s father, then aged seventy-seven, came to Adelaide for a short visit.  His father, whom he had not seen for some eight years, was very sick with prostrate cancer.  The applicant sought to have a few days off to spend with his father.  He said he explained that it could possibly be the last time he would see his father alive.  As he was then a part-time employee he felt that he could make up lost working days in the following weeks.  He was informed that he could not take time off as there was too much work to do in the department.  He said he was accused by his superior of being the worst performing officer and that a lot of people were on leave at the time.  Mr Wiegand said he was greatly upset by these events.  He lodged a grievance complaint against the officer.  The grievance was disallowed.  Mr Wiegand was advised that it was proper for management to consider applications for recreation leave based on work demands and personal needs of staff.  The investigating officer was satisfied that this happened in relation to his application.  Mr Wiegand was informed that the investigation had not produced any evidence of discrimination against him.  However, the investigating officer said that he was not satisfied that the necessary open lines of communication either from management to staff or from staff to management were in place to address things such as planning workloads, monitoring results, responding to fluctuations and dealing with workforce planning issues.  The investigating officer intended to implement arrangements of that kind.  [In relation to this incident, the Tribunal said that it was satisfied that the officer concerned could have been much more sensitive in dealing with Mr Wiegand, and that it appeared that the officer was out to show Mr Wiegand who was “boss”.  The Tribunal found that the refusal of the application “would justifiably cause the applicant to be upset”.]

·                     In December 1995 Mr Wiegand attended a meeting with an occupational health adviser and his section manager which followed the refusal of the respondent to pay a doctor’s account.  The meeting concerned the reasons why Mr Wiegand had visited the doctor.  As the meeting progressed, he felt that it was leading nowhere so he got up to leave the room only to find one of the officers blocking his path.  The other officer calmed down the situation and had Mr Wiegand sit down again to discuss the visit to the doctor.  On a second occasion Mr Wiegand again got up to leave the room and again his exit was blocked.  He became extremely worried and fearful something would happen.  He was again told to sit down.  He pretended to do so and as the officer blocking his exit moved away from the door, he was able to move quickly through it and out of the room.  Mr Wiegand lodged a grievance complaint against the officer who had blocked his exit saying that he felt harassed and that his health had been affected.  The grievance was disallowed.  [The investigating officer who conducted the grievance investigation found that as Mr Wiegand had attempted to leave the room, an officer had stood so as to appear to block the exit.  The investigating officer said:

“The meeting room in which the meeting of 6/12/95 took place is such that given the position in which (the officer who blocked the exit) sat, it was inevitable that in standing he would have stood between the door and anybody trying to leave the room.  I am satisfied that (the officer) was attempting to convince Mr Wiegand of the need to treat the matter under discussion both seriously and urgently and therefore in standing he prevented Mr Wiegand from leaving.  However, I am not convinced that there was ever any threat either implied or otherwise on the part of (the officer).  I can see how Mr Wiegand might have interpreted (the officer’s) actions as an attempt to prevent him from leaving the room, and therefore feel harassed, but from the evidence given by (the officers) I do not believe there was ever any intent on the part of (the officer), and that harassment did not occur.” 

Later, in his recommendations, the investigating officer said that if Mr Wiegand felt harassed then he could certainly not dispute that.]

·                     In about 1996 Mr Wiegand was the subject of a tax audit in relation to his previous three years tax returns.  This led to the disallowance of a number of business related expenses and the raising of a tax debt in the order of $17,500.  Mr Wiegand said that it was unusual for an audit of this kind to take place and he believed that he had been chosen not by random action, but specifically by one of the officers against whom he had lodged a grievance. 

11                  The above is not a complete list of the situations and events about which the applicant expressed concern in the course of his employment and which he said contributed to his ill health.  However, these include the major events canvassed in his evidence.  I think it is unnecessary to go into further detail for the purpose of demonstrating the error of law by the Tribunal which I consider occurred. 

Consideration

12                  The events about which Mr Wiegand made complaint were canvassed extensively by the respondent in Mr Wiegand’s cross-examination.  Documents relating to the several grievance complaints were placed in evidence by the respondent.  However, no other evidence was led by the respondent, save from Professor Goldney on medical issues.  Mr Wiegand’s evidence about the happening of the events was not directly challenged, and the Tribunal in its reasons said that it was satisfied on its observations of Mr Wiegand that he was a very sincere man whose credibility was not in issue.  I think it must follow from this finding that the happening of the events about which Mr Wiegand made complaint was accepted by the Tribunal.  Indeed, the occurrence of the events was to an extent borne out by the exhibits tendered by the respondent.  What was put in issue by the respondent was the reasonableness of the interpretations placed on these events by Mr Wiegand, and his perceptions generally about them. 

13                  As I understand the medical evidence, which the Tribunal accepted, there was no substantial disagreement between the psychiatrists.  Mr Wiegand has a major depressive disorder and in addition he has prominent obsessive compulsive personality traits.  Professor Goldney thought in addition it is probable that there are paranoid personality traits present.  Professor Goldney observed that “there is no doubt that the workplace has become a primary focus for Mr Wiegand and he tends to attribute all his difficulties to that.  Quite clearly from the psychiatric point of view such an attribution is not tenable, as one would need to factor in other longitudinal life issues such as the family and interpersonal stressors …”.  That opinion appears to be consistent with the views of the other doctors. 

14                  The psychiatrists appear to be in substantial agreement that all of Mr Wiegand’s difficulties cannot be attributed to his employment, and that the predominant factor in his depressive disorder relates to his basic personality.  However, that conclusion does not answer the question whether, within the meaning of the definition of disease in the SRC Act, Mr Wiegand was in January 1998 incapacitated by an aggravation of that ailment that was contributed to in a material degree by his employment with the ATO. 

15                  Dr Davis, in his report said:

“I consider that his chronic depressive disorder is a consequence of an interaction of his personality style and his perception of major problems in the work place.  He has repeatedly been in conflict with his employer, and this has given rise to intense frustration, anxiety and depression.  Mr Wiegand indicated a number of structural problems in the work place, and made frequent reference to incompetence and inefficiency by management.  I am unable to offer an objective appraisal of this, and suggest that an independent review would be necessary to assess the validity of these claims.  Nonetheless, I consider that the predominant contributing factor in this depressive disorder relates to his personality style, with a lesser contribution from work place problems.”

This opinion treats workplace problems as making a contribution to the depressive disorder which Mr Wiegand was suffering at the time of Dr Davis’ examination and report in June 1998. 

16                  Dr Coyte in a passage from one of his reports, cited by the Tribunal in its reasons, said:

“Mr Wiegand gave a history and showed signs of having had a depressive disorder for at least two years prior to my first contact with him.  His symptoms had worsened over the few months prior to the first consultation however and at that time, were severe enough to be given a diagnosis of Major Depression.

Mr Wiegand also gave a history of a long tendency toward being preoccupied with injustices and imperfections and the correction of these.  He thus could be described as a man who lives by highly principled rules, which are fairly rigidly held in spite of the difficulties produced by doing so.  This would be diagnosed as a personality with prominent obsessive-compulsive traits.

It was the impact of perceived incompetencies, errors and injustices in his workplace, upon his pre-existing personality, which caused Mr Wiegand increasing frustration and worry.  When this frustration and worry repeatedly failed to be resolved in spite of his best efforts, Mr Wiegand became more and more depressed.”

In his oral evidence Dr Coyte said that, whilst the applicant had a personality which consists of sticking by the rules and is very justice and rights orientated, it was his work environment that triggered his depression.  In expressing this opinion it is implicit that Dr Coyte has accepted the account of the work events given to him by Mr Wiegand (which did not depart significantly from that given by Mr Wiegand in evidence and before the Tribunal). 

17                  Professor Goldney, after saying that from a psychiatric point of view it was not tenable to attribute all Mr Wiegand’s difficulties to his employment as one would need to factor in other longitudinal life issues, went on to say:

“In addition one must consider whether or not Mr Wiegand’s perception of the workplace is in fact reality based, or whether it is over determined by his basic personality.  In regard to that basic personality, there is no doubt that he is a man with very strong views, and the term ‘obsessive compulsive’ is appropriate, and indeed it is probable that Mr Wiegand’s intense focus borders on the paranoid.  However, whether or not his perception is definitely paranoid depends on the reality or otherwise of his claims about the workplace.  It is challenging to evaluate such claims as Mr Wiegand tends to present his complaints in general terms, denigrating the public service as a whole.  I regret that I am unable to make any determination on the basis of the information he has provided.  Indeed, the information which he refers to appears to have been the subject of quite intensive scrutiny over a number of years, and it would not be prudent to disagree with their conclusions.”

18                  I interpret the concluding sentence of this passage to say that Professor Goldney did not consider that it would be prudent for him to disagree with the conclusions of the investigating officers whose investigations led to the disallowance of the grievance complaints made by Mr Wiegand.  Later in his report, Professor Goldney also said:

“Naturally, Mr Wiegand attributes his condition to the workplace, but the reality of the situation is that there are a number of other significant issues which have occurred in his life and which need to be considered when assessing the cause of his undoubted major depressive disorder.  On balance, I consider that it is most unlikely that the workplace has materially contributed to his condition and that it has been Mr Wiegand’s perception of the workplace, due to his longstanding personality traits, which have led to difficulties in the workplace.  If in fact there have been significant breaches of reasonable practice within the workplace, then there would be substance to Mr Wiegand’s complaints.  However, it is my understanding that his complaints have been investigated extensively and found wanting.”

19                  The Tribunal based its conclusion substantially on these passages from the evidence of the psychiatrists.  The Tribunal noted that Dr Coyte “was of the view that the applicant’s depression has come about because of the impact of the ‘perceived’ (Tribunal emphasis) injustices and imperfections of the workplace” upon his obsessive compulsive personality traits.  The Tribunal then referred to Professor Goldney’s opinion that there was a need to consider whether or not the applicant’s “perception” of the workplace is in fact reality based, or whether it is over-determined by his basic personality.  The Tribunal also noted that Professor Goldney and Dr Davis were of the opinion that Mr Wiegand was likely to have developed depression no matter what work environment he was in.  Then followed the Tribunal’s reasons for its conclusion, expressed in the following terms:

“90.     The Tribunal on the evidence before it is satisfied and finds that the applicant has a major depressive disorder and that in addition has prominent obsessive-compulsive personality traits which are related to longitudinal life issues and that whilst upset in the work environment such was not the cause of his unfortunate condition.  The Tribunal is further satisfied that the applicant is vulnerable to stressors resulting in his depression being exacerbated but that such is the result of constitutional factors rather than any external factors.  As a result of his condition the Tribunal is satisfied that he is unable for the present to return to his original work in the ATO.”

20                  In my opinion the reasoning of the Tribunal fails to address the narrow issue which fell for decision, namely whether within the meaning of the definition of disease the major depressive disorder suffered by Mr Wiegand in respect of which the compensation claim was made was “an ailment or an aggravation that was contributed to in a material degree by the employee’s employment …”.  To ask whether the upset in the work environment was the cause of Mr Wiegand’s “condition” is to ask a question that departs from the definition of disease, and in particular a wrong question which seeks to identify a single real cause of the condition.  It is not a test which recognises that an injury, being a disease, will be compensable if it is an aggravation of an ailment to which the employment was merely one of a number of factors that contributed in a material degree.

21                  Further, in this passage of the reasons, the Tribunal expresses the conclusion that Mr Wiegand is vulnerable to stressors which resulted in his depression being exacerbated.  That is an important finding, consistent with Professor Goldney’s evidence, that poses the further question, namely whether such stressors occurred in circumstances which attract a finding that the employment contributed in a material degree to his depression being exacerbated.  For the purposes of considering the causation requirement of the definition of disease, I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment.  In the context of this case both expressions convey the same notion, namely that the depression became worse.  It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors.  It is not the vulnerability that constitutes or may constitute an aggravation.  The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.

22                  This may not be the same question as Professor Goldney posed but left unanswered in the paragraph of his report cited at [17] above.  What does he mean by reality of the perception? 

23                  In terms of the definition of disease, the question which the Tribunal was required to consider was whether Mr Wiegand’s ailment or an aggravation of the ailment “was contributed to in a material degree by the employee’s employment”.  In relation to the concept of employment as a contributing factor, the respondent concedes that the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable:

“Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc.  It is in that sense that I should understand the language of the definition.”

Federal Broom Co Pty Ltd v Semlitch concerned the definition of “injury” in s 6(1) of the Workers’ Compensation Act 1926-1960 (NSW).  That definition extended “injury” to include “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration; …”.  In the definition of “disease” in s 4 of the SRC Act, the notions of acceleration, exacerbation or deterioration are no longer mentioned, but for practical purposes I consider this provides no basis for distinguishing the observations of Kitto J.  It will also be noted that the definition of “disease” in the SRC Act requires that employee’s employment contributed to a “material degree”, but the introduction of the notion that the contribution must be “material” was held not to be a ground for differently construing the requirements for the definition of “disease” in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323. 

24                  It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to “employment” which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against.  All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee.  A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.

25                  This situation may be contrasted with that considered in Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 where it was held that the fact that a neurotic employee wrongly believed that his leg pain arose out of his work did not mean that his employment actually was a contributing factor to his neurosis. 

26                  An interpretation similar to that enunciated by Kitto J was also given to the notion of employment by Windeyer J in Federal Broom Co Pty Ltd v Semlitch at 641 where his Honour said:

“I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment?  This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all.  When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment.  The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.”  (emphasis added)

27                  In a case where an employee suffers a long standing mental ailment which has its origin in factors unrelated to the employment, an aggravation of that condition contributed to in a material degree by the employee’s employment will not fall outside the definition of disease merely because it is likely that in the end the underlying ailment would inevitably have progressed until the employee was unable to work:  see Federal Broom Co Pty Ltd v Semlitch per McTiernan J at 630.  If the incident or state of affairs to which the worker was exposed caused incapacity to occur, it is not to the point that, had such exposure not happened, the disease may have caused the employee to become incapacitated at about the same time in whatever other situation or place the worker happened to be.

28                  Whether an incident or state of affairs to which an employee is exposed in the performance of the employee’s duties contributes in a material degree to an ailment or aggravation of an ailment suffered by the employee is ultimately a question of fact.  However, it is a question of fact to be determined by a proper application of the definition of the meaning of “disease”. 

29                  In the passage from his report cited at par [18] above, Professor Goldney seems to base his opinion that it is most unlikely that the workplace has materially contributed to Mr Wiegand’s condition on an understanding that, as a matter of law, an incident or state of affairs to which the employee was exposed in employment will only constitute a contributing factor to an aggravation of an ailment if the incident or state of affairs was objectively unreasonable – in other words, that it would justify in the mind of an employee of ordinary disposition and mental health the perception held by the employee making the claim.  That Professor Goldney had such an understanding is implicit in the following passage from his report:

“If in fact there have been significant breaches of reasonable practice within the workplace, then there would be substance to Mr Wiegand’s complaints.  However, it is my understanding that his complaints have been investigated extensively and found wanting.”

30                  Professor Goldney was asked to express his view on whether Mr Wiegand was suffering an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment.  Professor Goldney is not to be criticised for having complied with that request.  However, where an expert witness expresses an opinion on the ultimate issue in the case, it is important that the decision-maker recognise that this has occurred, and ensures that the expert, in reaching that opinion, has correctly applied the relevant legal test upon which the ultimate issue turns.  In this case, the reasons advanced by Professor Goldney for his opinion that on balance it is most unlikely that the workplace has materially contributed to Mr Wiegand’s condition, indicates that he has not applied the correct legal test flowing from the definition of “disease”.  Rather, he has offered his opinion on the assumption that an incident or state of affairs to which Mr Wiegand was exposed in the course of his employment could only contribute to a material degree to an aggravation of his ailment if the incident or state of affairs constituted a significant breach of reasonable practice, so as to render Mr Wiegand’s perceptions objectively reasonable. 

31                  In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand.  For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness.  If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled. 

32                  As the Tribunal reached its conclusion partly upon the acceptance of Professor Goldney’s opinion which was based on an incorrect legal understanding, and partly upon its own application of the wrong test, I consider that the Tribunal’s decision must be set aside and the matter remitted to the Administrative Appeals Tribunal for re-hearing.

33                  Counsel for the respondent made a strenuous attempt to avoid this conclusion.  Whilst acknowledging that at no point in the reasons for decision did the Tribunal correctly express the test which the definition of “disease” poses, counsel argued that nevertheless the Tribunal had in substance applied the correct test in reaching its conclusion that the incidents described by Mr Wiegand did not contribute to a material degree to any worsening in his condition, or to the onset of incapacity in January 1998.  Counsel argued that the evidence showed no more than that the depressive disorder suffered by Mr Wiegand had followed its natural path, and that none of the incidents about which complaint was made were shown to have made the condition any worse.  The submission was summarised by saying that it is not the employment that has caused Mr Wiegand’s ailment and incapacity, but what he brought to the employment, namely his personality and disposition to suffer as he did.  Counsel relied in particular on the following passage from the evidence-in-chief of Professor Goldney:

“Well, do you conceive of some lifestyle that Mr Wiegand could have realistically led for the last 15 years whereby his paranoid condition now would in all likelihood be different, that is by not working, by working somewhere else, whatever, or has the condition in all likelihood just followed its natural path? --- I think it’s most likely to have followed its natural path but it’s become – the water has become muddy because issues that have occurred within the work place have been incorporated into the – into his belief system and so that’s why it’s very hard to respond definitely to the question.  One can simply observe that really he – you know, there had been issues of litigation before his employment with the Tax Department.  Within less than 3 weeks of being with the Tax Department he was registering concern about his perception of air-conditioning causing his physical symptoms.  He expressed dissatisfaction with his life back in Germany.  He spoke of one of the courses, one of his tertiary studies, he spoke about that in disparaging terms.  I think it is really part of his personality and that he has really taken it with him, so to speak.  Now, the issues that have arisen in the Tax Department, I think they are a far lesser significance, for example, than issues such as the break-up of his marriage, the inter-personal difficulties that he has had with his mother.  I think those issues have been of far greater significance.  Now, one can’t say that the work place has had no impact at all but I think it has had minimal impact in terms of his overall functioning.”

34                  I do not think that this passage of evidence assists the respondent.  Professor Goldney does not rule out contribution to some extent of incidents and states of affairs to which Mr Wiegand was exposed in his employment.  It is not necessary that such an incident or state of affairs is a major cause of the ailment or resulting disability.  It is sufficient that an incident or state of affairs contributes in a material degree.  That may be the case even where there are a number of other contributing factors, and other factors that have contributed to a greater degree.

35                  The Tribunal did not consider and then dismiss as a contributing factor each and every of the incidents or state of affairs about which Mr Wiegand complained.  After listing many of the complaints, the Tribunal specifically addressed the incident concerning Mr Wiegand’s application for leave to be with his sick father, and the incident concerning his application to change from full-time to part-time employment.  In relation to the first of these incidents, the Tribunal concluded its discussion by saying:

“However, given his condition at the time the Tribunal is unable to determine that such refusal (to grant leave) and his subsequent being upset by it can be such to be accepted as a factor in his depressive state.”

I have difficulty understanding this conclusion.  Given the nature of the medical evidence, and the finding that Mr Wiegand was upset by the incident, it is difficult to see how, upon the application of the correct test, the upset could not be a factor which aggravated his depressive state.  Counsel for the respondent contends that this incident could not qualify as a factor contributing to the employee’s ailment by virtue of the proviso to the definition of “injury”.  Under that proviso, injury does not include an aggravation suffered as a result of failure by the employee to obtain a benefit in connection with the employment.  Counsel argues that the refusal to grant leave relevantly constitutes failure to obtain a benefit within the meaning of the proviso.  However that is not the reason given by the Tribunal.  If it were, other questions would arise as to the meaning and operation of the proviso.  In particular, it would be necessary to consider whether it was only the refusal to grant leave which caused Mr Wiegand his upset, or whether it was the manner and style of the officer who the Tribunal thought was out to show who was “boss”. 

36                  In relation to the incident regarding the application to change from full-time to part‑time employment, the Tribunal found:

“… that the request for him to relinquish the role of Health and Occupational Officer, no matter how upsetting, does not amount to discrimination.  It further finds that it cannot be classed as having a causal connection with his condition.”

I think this finding reflects a misunderstanding of the correct test.  It was not necessary for Mr Wiegand to establish that the incident amounted to discrimination.  There is a finding that the incident was upsetting.  Against that finding I consider that the Tribunal was in error to conclude that the incident could not be classed as having a causal connection with the aggravation of his condition.  The Tribunal accepted that the applicant was vulnerable to stressors.  The implicit finding that Mr Wiegand was upset by the incident would provide a basis upon which the Tribunal could have found that the upset constituted a stressor which aggravated his condition.

37                  Having dealt specifically with these two matters, the Tribunal then said “in so far as other factors are concerned the Tribunal is satisfied that much of the cause of the applicant’s condition was due to his personality”.  The discussion which follows does not consider the balance of the cause of the applicant’s condition which was not due to his personality.  If there was some other cause, on the evidence the only reasonable inference is that it lay in the incidents or state of affairs to which Mr Wiegand was exposed in his employment. 

38                  I am unable to accept the submission that the Tribunal, without expressing the correct test, actually applied it.  In my opinion the reasons for decision indicate that the Tribunal did not apply the correct test. 

39                  For these reasons the decision of the Tribunal must be set aside and the matter remitted for re-hearing.

40                  At the re-hearing it will be necessary for the Tribunal to give consideration to the arguments raised by the respondent about the operation of the proviso to the definition of injury.  It may be that one or more of the incidents about which Mr Wiegand complains cannot be taken into account because of the proviso.  Further, there was evidence before the Tribunal, not discussed in the reasons for decision, that Mr Wiegand’s incapacity was precipitated by a failure to gain promotion to a higher position in December 1997, that is just before he ceased working.  The respondent’s argument, as I understand it, is that this event alone brought about incapacity, and that earlier events have no causal relationship with the incapacity for which compensation is claimed. 

41                  It is necessary to consider the question of costs.  Mr Wiegand has incurred very few expenses in bringing this appeal.  Nevertheless, he would ordinarily be entitled to an order for his out of pocket expenses.  However, he also brought on for hearing a notice of motion which he served on the respondent seeking orders for the production of ATO records.  I dismissed that notice of motion at the commencement of the hearing of the appeal.  The respondents would ordinarily be entitled to costs in respect of that notice, but counsel acknowledges that it added little to the events of today.  In all the circumstances I consider justice will be done by making no order as to costs.

Associate:

Dated:              5 December 2002